Information Note 221 (August-September 2018) · Dimitar Yordanov v. Bulgaria, 3401/09, judgment...

INFORMATION NOTE 221Case-law of the European Court of Human Rights

2018AUGUSTSEPTEMBER

English edition

ISSN 1996-1545

Anyone wishing to reproduce and/or translate all or part of the Information

Note in print, online or in any other format should contact [email protected] for

further instructions.

European Court of Human Rights (Council of Europe)

67075 Strasbourg Cedex France

Tel: + 33 (0)3 88 41 20 18 Fax: + 33 (0)3 88 41 27 30

[email protected] www.echr.coe.int

twitter.com/echrpublication

Layout: Publications Unit

Photograph: Council of Europe

Cover: interior of the Human Rights Building (Architects: Richard Rogers

Partnership and Atelier Claude Bucher)

© Council of Europe – European Court of Human Rights, 2018

mailto:[email protected]

mailto:[email protected]

www.echr.coe.int

https://twitter.com/echrpublication

Table of contents

ARTICLE 2Use of force

Death of a mentally disturbed person threatening a man’s life, following a gunshot fired by a police officer while chasing him: inadmissible

Mendy v. France, 71428/12, decision 27.9.2018 [Section V] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Effective investigation, positive obligations (procedural aspect)

Failure to conduct within a reasonable time criminal and civil proceedings concerning a death suspected of resulting from medical negligence: violation

Yirdem and Others v. Turkey, 72781/12, judgment 4.9.2018 [Section II] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARTICLE 5ARTICLE 5 § 1

Deprivation of liberty, lawful arrest or detention

Unacknowledged deprivation of liberty following “bringing in” of suspect to police station: violation

Mushegh Saghatelyan v. Armenia, 23086/08, judgment 20.9.2018 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARTICLE 6ARTICLE 6 § 1 (CIVIL)

Fair hearing

Lack of reasons for Supreme Court decision not to refer to CJEU for preliminary ruling, absent explicit request to this effect: inadmissible

Somorjai v. Hungary, 60934/13, judgment 28.8.2018 [Section IV] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARTICLE 6 § 1 (CRIMINAL)

Criminal charge, access to court, fair hearing

Complaint about refusal by domestic court to reopen criminal proceedings following finding of a violation of Article 6 by European Court: admissible

Refusal by Court of Cassation of request for revision of a criminal judgment further to a judgment of European Court finding a violation of Article 6: no violation

Kontalexis v. Greece (no. 2), 29321/13, judgment 6.9.2018 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARTICLE 6 § 3 (a)

Information in language understood

ARTICLE 6 § 3 (e)

Free assistance of interpreter

Failure to provide interpretation of criminal proceedings and documentation in a language of which the accused had a sufficient command: violation

Vizgirda v. Slovenia, 59868/08, judgment 28.8.2018 [Section IV] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ARTICLE 8Respect for private and family life

Exhumation, in the context of criminal proceedings, of the remains of deceased persons against the wishes of their families: violation

Solska and Rybicka v. Poland, 30491/17 and 31083/17, judgment 20.9.2018 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Respect for private life

Dismissal of judge from the position of President of appeal court for failure to

properly perform administrative duties: Article 8 not applicable; inadmissible

Denisov v. Ukraine, 76639/11, judgment 25.9.2018 [GC] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Military service performed by a conscript who had not informed

the authorities about his scoliosis: no violation

Kasat v. Turkey, 61541/09, judgment 11.9.2018 [Section II] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Convention compliance of secret surveillance regime including the bulk

interception of external communications: violations; no violation

Big Brother Watch and Others v. the United Kingdom, 58170/13 et al., judgment 13.9.2018 [Section I] . . . . . . . . . . . . . . . 16

Authorities’ refusal to change applicant’s ethnicity records: communicated

Gabel v. Azerbaijan, 62437/10 [Section IV] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Respect for family life, positive obligations

Lengthy separation of father and child due to lack of statutory possibility to

have visiting rights established during divorce proceedings: violation

Cristian Cătălin Ungureanu v. Romania, 6221/14, judgment 4.9.2018 [Section IV] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Respect for family life

Mother denied contact rights in respect of her child in foster care because of abduction risk: violation

Jansen v. Norway, 2822/16, judgment 6.9.2018 [Section V] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Positive obligations

Authorities’ failure to prosecute perpetrator of in decent sexual acts against minor: communicated

K.M. v. the former Yugoslav Republic of Macedonia, 59144/16 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ARTICLE 10

Freedom of expression

Ban on books by well-known classic Muslim theologian, declared extremist literature: violation

Ibragim Ibragimov and Others v. Russia, 1413/08 and 28621/11, judgment 28.8.2018 [Section III] . . . . . . . . . . . . . . . . . . 23

Conviction and suspended prison sentence for offensive Internet

comment against police officers: violation

Savva Terentyev v. Russia, 10692/09, judgment 28.8.2018 [Section III] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Insufficient protection of confidential journalist material under

electronic surveillance schemes: violations


Lawyers temporarily barred from representing their terrorist client

to avoid transmission of his statements: inadmissible

Tuğluk and Others v. Turkey, 30687/05 and 45630/05, decision 27.9.2018 [Section II] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ARTICLE 11

Freedom of peaceful assembly

Prosecution and conviction of activist following dispersal of peaceful assembly: violation

Mushegh Saghatelyan v. Armenia, 23086/08, judgment 20.9.2018 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ARTICLE 14

Discrimination (Article 1 of Protocol No. 1)

National legislation providing, in certain situations, for higher taxation of pension income than earned income: communicated

Taipale v. Finland, 5855/18 [Section I], Tulokas v. Finland, 5854/18 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ARTICLE 18

Restriction for unauthorised purposes

Detention of human rights defender and search of his home and office for the purpose of silencing and punishing him and impeding his work: violation

Aliyev v. Azerbaijan, 68762/14 and 71200/14, judgment 20.9.2018 [Section V] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ARTICLE 35ARTICLE 35 § 1

Exhaustion of domestic remedies, effective domestic remedy – United Kingdom

Effectiveness of complaint about the general Convention compliance of a surveillance regime to the Investigatory Powers Tribunal: admissible


ARTICLE 35 § 3 (b)

No significant disadvantage

Lack of effective judicial supervision of a house search devoid of any financial implications: preliminary objection dismissed

Brazzi v. Italy, 57278/11, judgment 27.9.2018 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ARTICLE 46

Execution of judgment – General measures

Respondent State required to eradicate arbitrary arrests, detention and retaliatory prosecution of government critics, civil society activists and human rights defenders

Aliyev v. Azerbaijan, 68762/14 and 71200/14, judgment 20.9.2018 [Section V] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ARTICLE 1 OF PROTOCOL No. 1

Peaceful enjoyment of possessions

Unlawful exposure of property to daily mine detonations in close proximity: violation

Dimitar Yordanov v. Bulgaria, 3401/09, judgment 6.9.2018 [Section V] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31


General prohibition of discrimination

National legislation providing, in certain situations, for higher taxation of pension income than earned income: communicated

Taipale v. Finland, 5855/18 [Section I], Tulokas v. Finland, 5854/18 [Section I] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

OTHER JURISDICTIONS

European Union – Court of Justice (CJEU) and General Court

No reasons provided for the dismissal by a Catholic hospital of a Catholic Chief Medical Officer for remarrying after his divorce

IR v. JQ, C-68/17, judgment 11.9.2018 (CJEU, Grand Chamber) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Inter-American Court of Human Rights (IACtHR)

State Obligations with respect to the right to health and life of older persons

Poblete Vilches et. al. v. Chile, Series C No. 349, judgment 8.3.2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

COURT NEWSElections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Entry into force of Protocol No. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

New edition of the Rules of Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Key cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

RECENT PUBLICATIONSReports of Judgments and Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Case-Law Guides: new translations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Translations into Ukrainian. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

New case-law research report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Human rights factsheets by country

Information Note 221 August | September 2018 Article 2

ARTICLE 2

Use of force

Death of a mentally disturbed person threaten-ing a man’s life, following a gunshot fired by a police officer while chasing him: inadmissible

Mendy v. France, 71428/12, decision 27.9.2018 [Section V]

Facts – The applicant is L.M.’s sister. In May 2007 two police officers, L.L. and S.T., attempted to arrest L.M., who was chasing J.-P.H., threatening him with a knife. L.M. was shot dead by police officer S.T.

Law – Article 2 (substantive limb): L.M.’s wildly erratic behaviour had indisputably posed an imminent threat to J.-P.H.’s life. L.M. had threatened and then pursued him, armed with a knife, refusing to obey police orders, ignoring warning shots and even stabbing police sergeant L.L., who was trying to stop him. He had injured L.L.’s hand, and then resumed his headlong pursuit of J.-P.H. after being hit by a car. The police officers had therefore been justified in considering that L.M. appeared to be out of control.

Police officer S.T. had therefore acted in the sincere belief that J.-P.H.’s life was under threat and had genuinely believed that physical force was needed, which entitled him to use appropriate, potentially lethal means to ensure the defence of J.-P.H.’s life.

Police officer S.T. had fired two warning shots, neither of which had had any deterrent effect on L.M. Furthermore, when the officer had fired the next two shots, without taking aim, he had merely been attempting to hit the bulk of the body of the person whom he was trying to arrest. The fatal gunshot had been fired when the officer and the victim were five metres apart, but running fast, which had significantly reduced the accuracy of the police officer’s aim. Finally, L.M. had caught up to within four or five metres of J.-P.H. In view of all those facts, the police officer’s response had been absolutely necessary in the light of the serious immediate threat to J.-P.H.’s life.

In view of L.M.’s attitude, the inability of police ser-geant L.L. to intervene once he had been injured, and the imminent risk indisputably incurred by J.-P.H., S.T.’s decision to use his firearm, despite the risk of inaccuracy entailed by his pursuit of L.M., could, in the specific circumstances of the case, be deemed absolutely necessary “in defence of any

person from unlawful violence” within the meaning of Article 2 § 2 (a) of the Convention.

Moreover, L.M.’s violent actions had not been attributable to any feeling of being threatened by the police officers’ actions. Indeed, his aggres-sive attitude had begun before their arrival on the scene and had been the reasons why a neighbour had called the police and why they had arrived so rapidly. Moreover, it was L.M.’s conduct which had led the police officers to use force and had led the Court to rule that that use of force had been justi-fied and absolutely necessary in the light of the cir-cumstances of the case.

Lastly, Article 122-5(1) of the Penal Code, applicable to the law-enforcement agencies, which laid down the criteria for legitimate self-defence and defence of others, mentioned the “necessity” of the defence and the “imminence” of the danger, and required the reaction to be proportionate to the aggression. Even though they were not identically worded, that provision was similar to Article 2 of the Convention and comprised all the elements required by the case-law of the Court. In the light of the circum-stances of the case it was clear that the respondent State had an appropriate domestic legal framework governing the use of firearms.

Conclusion: inadmissible (manifestly ill-founded).

The Court also found inadmissible as manifestly ill-founded the part of the application under the procedural limb of Article 2, given that the inves-tigation as a whole had been sufficiently effective to establish that the use of force had been justified under the circumstances.

(See also McCann and Others v. the United Kingdom [GC], 18984/91, 27 September 1995; Makaratzis v. Greece [GC], 50385/99, 20 December 2004, Infor-mation Note 70; Giuliani and Gaggio v. Italy [GC], 23458/02, 24 March 2011, Information Note 139; Aydan v. Turkey, 16281/10, 12 March 2013, Informa-tion Note 161; Lamartine and Others v. France (dec.), 25382/12, 8 July 2014; and Guerdner and Others v. France, 68780/10, 17 April 2014)

Effective investigation, positive obligations (procedural aspect)

Failure to conduct within a reasonable time criminal and civil proceedings concerning a death suspected of resulting from medical neg-ligence: violation

http://hudoc.echr.coe.int/eng?i=001-186623










Yirdem and Others v. Turkey, 72781/12, judgment 4.9.2018 [Section II]

Facts – The applicants alleged that their relative had died in hospital following a number of instances of medical negligence. They claimed that the domes-tic courts had not been sufficiently prompt, reactive or diligent in dealing with the situation.

Law – Article 2

(a) Substantive aspect – Except in cases of manifest arbitrariness or error, it was not the Court’s function to call into question the findings of fact made by the domestic authorities. It followed that the exam-ination of the circumstances leading to the death of the applicants’ relative and the alleged responsi-bility of the health-care professionals involved were matters which must be addressed from the angle of the adequacy of the mechanisms in place for shed-ding light on the course of the events.

The applicants did not complain that their relative had been denied access to medical treatment in general or emergency treatment in particular, but complained that the medical treatment provided to him had been deficient because of the negligence of the doctors who had treated him.

No sufficient evidence had been adduced to demonstrate that there had existed, at the material time, any systemic or structural dysfunction affect-ing the hospitals which the authorities knew or ought to have known about and in respect of which they had failed to undertake the necessary preven-tive measures, and that such a deficiency had con-tributed decisively to the death of the applicants’ relative.

Nor had it been demonstrated that the alleged neg-ligence by the health-care professionals had gone beyond a mere error or medical negligence or that those involved in the treatment of the applicants’ relative had failed, in breach of their professional obligations, to provide emergency medical treat-ment to him despite being fully aware that his life was at risk if that treatment was not given.

The medical treatment provided to the applicants’ relative had been subjected to scrutiny at domestic level and none of the judicial or disciplinary bodies which had examined the applicants’ allegations had ultimately found any fault with his medical treatment.

In view of the foregoing considerations, the Court took the view that the present case concerned

allegations of medical negligence. In those circum-stances the respondent State’s substantive positive obligations were limited to the setting-up of an adequate regulatory framework compelling hospi-tals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. The relevant regulatory framework had not disclosed any shortcomings as regards the State’s obligation to protect the right to life of the applicants’ relative.

Conclusion: no violation (unanimously).

(b) Procedural aspect – The applicants had had recourse to two sets of proceedings, one criminal and the other civil, in order to assert their rights. The criminal proceedings had ended with the defend-ants being acquitted after proceedings lasting over nine years. The civil proceedings had been pending before the domestic courts since 2004.

In terms of the effectiveness of the criminal pro-ceedings, there had been no such shortcomings as could call into question the overall adequacy of the investigation conducted by the domestic author-ities. Moreover, the applicants had been granted access to the information yielded by the investiga-tion to a degree sufficient for them to participate effectively in the proceedings.

However, the criminal proceedings had not been prompt and their overall duration – over nine years – had not been reasonable. Proceedings instituted in order to shed light on accusations of medical negli-gence should not last for so long before the domes-tic courts. The same was true of the proceedings for compensation brought by the applicants before the civil courts, which had been pending before the domestic courts for over thirteen years. There was nothing in the case file to suggest that such lengthy proceedings were justified by the circumstances of the case. The Civil Court of General Jurisdiction had taken over nine years to conclude that the claim for damages against the hospital should have been lodged with the administrative courts and that it did not have jurisdiction to decide the case.

Such a lengthy time prolonged the ordeal of uncer-tainty not only for the claimants but also for the medical professionals concerned.

Those factors were sufficient in themselves to con-clude that the proceedings at domestic level had been deficient. The domestic authorities had failed to deal with the applicants’ claim arising out of their relative’s death with the level of diligence required by Article 2 of the Convention.



Conclusion: violation (unanimously).

Article 41: EUR 10,000 jointly in respect of non-pe-cuniary damage; claim in respect of pecuniary damage dismissed.

(See also Lopes de Sousa Fernandes v. Portugal [GC], 56080/13, 19 December 2012, Information Note 213; and the Factsheet on Health)

ARTICLE 5

ARTICLE 5 § 1

Deprivation of liberty, lawful arrest or detention

Unacknowledged deprivation of liberty follow-ing “bringing in” of suspect to police station: violation

Mushegh Saghatelyan v. Armenia, 23086/08, judgment 20.9.2018 [Section I]

(See Article 11 below, page 26)

ARTICLE 6

ARTICLE 6 § 1 (CIVIL)

Fair hearing

Lack of reasons for Supreme Court decision not to refer to CJEU for preliminary ruling, absent explicit request to this effect: inadmissible

Somorjai v. Hungary, 60934/13, judgment 28.8.2018 [Section IV]

Facts – Upon the applicant’s request, in March 2010 a labour court instructed the pension authority to recalculate his pension in accordance with EU rules. The pension authority stated that it would only pay arrears for the last five years preceding the date of the labour court’s decision, when the mistake was discovered, as provided by the 1997 Pensions Act. This was contested by the applicant who claimed arrears for the whole period following Hungary’s EU accession (May 2004) and that the current law constituted a “limitation of rights” prohibited by the relevant EU Regulation.

The labour court and the Kúria (the Supreme Court) upheld the decision of the pension authority restricting the payment period. The Kúria did not

address the applicant’s argument that Article 234 of the Treaty Establishing the European Community (now Article 267 of the Treaty on the Functioning of the European Union (TFEU)) was violated by the labour court’s judgment.

Law – Article 6 § 1

(a) Complaint alleging a misinterpretation of EU law – The review of the soundness of the Kúria’s interpretation of EU law fell outside the Court’s jurisdiction.

Conclusion: inadmissible (incompatible ratione materiae).

(b) Complaint of a lack of reasoning in connection with the need for a reference for a preliminary ruling – The Kúria’s jurisdiction had been limited to an examination of the issues raised by the petition for review. The applicant had not requested, in his petition for review, that the case be referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling; nor had he provided any reasons as to why, in his view, the labour court’s judgment had violated Article 234 of the Treaty Establishing the European Community. Under those circum-stances, the Kúria’s lack of reasoning in connection with those aspects seemed to be in line with the domestic procedural rules.

In addition, as per the CJEU relevant case-law, even if the initiative of a party was not necessary for a domestic court against whose decisions there was no judicial remedy under national law to be obliged to bring a question concerning the interpretation or the validity of EU law before the CJEU, it was solely for that court to determine, in the light of the particular circumstances of the case, the need for a preliminary ruling in order to enable it to deliver judgment. In the present case the Kúria had been of the view that the relevant provisions of the 1997 Pensions Act and those of the relevant EU Regula-tion did not conflict, and thus had not considered a preliminary ruling on a question of EU law necessary to give judgment. In such circumstances the Court did not discern any appearance of arbitrariness in the fact that the Kúria had not referred a question to the CJEU for a preliminary ruling or in its manner of giving reasons for the judgment without elabo-rating on questions related to a potential reference for a preliminary ruling.




https://www.echr.coe.int/Documents/FS_Health_ENG.pdf



https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2016:202:FULL



The Court unanimously found a violation of Article 6 § 1 on account of the length of the proceedings.

Article 41: EUR 2,000 in respect of non-pecuniary damage.

(See also Ullens de Schooten and Rezabek v. Belgium, 3989/07, 20 September 2011, Information Note 144; and Baydar v. the Netherlands, 55385/14, 24 April 2018, Information Note 217)

ARTICLE 6 § 1 (CRIMINAL)

Criminal charge, access to court, fair hearing

Complaint about refusal by domestic court to reopen criminal proceedings following finding of a violation of Article 6 by European Court: admissible

Refusal by Court of Cassation of request for revi-sion of a criminal judgment further to a judg-ment of European Court finding a violation of Article 6: no violation

Kontalexis v. Greece (no. 2), 29321/13, judgment 6.9.2018 [Section I]

Facts – On 31 May 2011 the European Court found a violation of Article 6 § 1 in the case of Kontalexis v. Greece, 59000/08, lodged by the same applicant. On 18 January 2013 the Court of Cassation rejected a request by the applicant for the proceedings to be reopened on the basis of Article 525 § 1 e) of the Code of Criminal Procedure.

Relying on Article 6 § 1 of the Convention, the applicant alleged that the domestic courts’ refusal to order the reopening of the proceedings concern-ing him had constituted a fresh violation of his right to a fair hearing by a tribunal established by law.

Law – Article 6 § 1

(a) Admissibility

(i) Did Article 46 of the Convention preclude the Court’s examination of the complaint under Article 6 of the Convention? – The new application raised a fresh complaint concerning the alleged unfairness of the procedure for examining the applicant’s exceptional appeal, as opposed to the outcome as such and its impact on the proper execution of the Court’s judgment of 31 May 2011. A supervision procedure in respect of execution of the judgment was currently pending before the Committee of Ministers of the Council of Europe. That did not,

however, prevent the Court from examining a new application in so far as it included new aspects which had not been determined in the initial judg-ment. Accordingly, Article 46 did not preclude the Court’s examination of the applicant’s new com-plaint about unfairness of the proceedings culmi-nating in the Court of Cassation’s decision.

(ii) Was the new complaint compatible ratione materiae with Article 6 of the Convention? – The pro-cedure under the Code of Criminal Procedure did not amount to an extraordinary procedure falling outside the scope of Article 6 where it ended with a decision of the competent court refusing to reopen criminal proceedings. The examination of the case had concerned the determination, within the meaning of Article 6 § 1, of a criminal charge against the applicant. Accordingly, the proceedings before the Court of Cassation attracted the protec-tion of Article 6 § 1.

(iii) Could the applicant claim to be a victim of a violation of Article 6 in the domestic proceedings for enforcement of the Court’s judgment? – The Govern-ment’s preliminary objection concerning the appli-cant’s victim status related to proceedings culminat ing in the Court’s judgment of 31 May 2011. It therefore concerned a situation prior to the proceedings regarding the applicant’s request to have the case reopened. Only the fairness of the proceedings fol-lowing the applicant’s request to have the case reo-pened could be the subject of a fresh review. The objection was therefore rejected.

(b) Merits – When refusing to order the reopening of the proceedings, the Court of Cassation had held that the violation found by the Court had been of a formal nature and had not concerned the right guaranteed by Article 6, namely the right of the accused to be tried by an independent and impar-tial tribunal and by independent and impartial judges.

More specifically, the Court of Cassation had held that the violation found by the Court had not affected the fairness of the proceedings and had not had a negative impact on the assessment by the judges of the criminal court. The violation was a fait accompli and was covered by the res judicata effect of the Court of Cassation’s judgment dismiss-ing the ground of appeal which the Court had sub-sequently upheld. The ground of appeal relating to the alleged unlawful composition of the court had been dismissed by the Court of Cassation in the first





https://www.coe.int/en/web/cm



proceedings and that decision could not be retro-actively challenged following the Court’s judgment.

According to the Court of Cassation’s interpretation of the Code of Criminal Procedure, procedural irreg-ularities of the type found in the instant case did not give rise to an automatic right to the reopen-ing of proceedings. That interpretation, which had the effect of limiting the situations that could give rise to the reopening of criminal proceedings that had been terminated with final effect, or at least making them subject to criteria to be assessed by the domestic courts, did not appear to be arbitrary. Moreover, it was supported by the Court’s estab-lished case-law.

The Court of Cassation had held that the Court’s judgment of 2011 had not cast doubt on the inde-pendence or impartiality of the judicial bench that had delivered the judgment in question or the fair-ness of the proceedings as a whole.

In view of the margin of appreciation available to the domestic authorities in the interpretation of the Court’s judgments, and in the light of the princi-ples governing the execution of judgments, it was unnecessary for the Court to express a position on the validity of the Court of Cassation’s interpreta-tion in its judgment of 18 January 2013. Indeed, it was sufficient for the Court to satisfy itself that that judgment was not arbitrary in that the judges of the Court of Cassation had not distorted or misrep-resented the judgment delivered by the Court.

Even if it did not necessarily agree in every respect with the analysis contained in the judgment of 18 January 2013, the Court could not conclude that the Court of Cassation’s reading of the Court’s judgment of 2011, viewed as a whole, had been the result of a manifest factual or legal error leading to a “denial of justice” and thus an assessment flawed by arbitrariness.


(See also Emre v. Switzerland (no. 2), 5056/10, 11 October 2011, Information Note 145; Bochan v. Ukraine (no. 2) [GC], 22251/08, 5 February 2015, Information Note 182; and Moreira Ferreira v. Portugal (no. 2) [GC], 19867/12, 11 July 2017, Information Note 209)

ARTICLE 6 § 3 (a)

Information in language understood

ARTICLE 6 § 3 (e)

Free assistance of interpreter

Failure to provide interpretation of criminal proceedings and documentation in a language of which the accused had a sufficient command: violation

Vizgirda v. Slovenia, 59868/08, judgment 28.8.2018 [Section IV]

Facts – The applicant, a Lithuanian national, was convicted and sentenced to a prison term in Slove-nia. He unsuccessfully initiated various legal chal-lenges complaining that he had not been able to defend himself effectively during the trial because the oral proceedings and the relevant documents had not been translated into Lithuanian, his native language, but instead into Russian, which he claimed to have considerable difficulties under-standing.

Law – Article 6 §§ 1 and 3

(i) General principles – It was incumbent on the authorities involved in the proceedings, in par-ticular the domestic courts, to ascertain whether the fairness of the trial required, or had required, the appointment of an interpreter to assist the defendant. In the Court’s opinion, that duty was not confined to situations where the foreign defend-ant made an explicit request for interpretation, but arose whenever there were reasons to suspect that the defendant was not proficient enough in the language of the proceedings. It also arose when a third language was envisaged to be used for the interpretation. In such circumstances, the defendant’s competency in the third language should be ascertained before the decision to use it for the purpose of interpretation was made. The fact that the defendant had a basic command of the language of the proceedings or, as might be the case, a third language into which interpretation was readily available, should not by itself bar that individual from benefiting from interpretation into a language he or she understood sufficiently well to fully exercise his or her right to defence.

In the instant case, the suspect had to be notified, in a language he understood, of his right to interpre-tation when “charged with a criminal offence”. The Court drew attention to the importance of noting in the record any procedure used and decision taken with regard to the verification of interpreta-tion needs, notification of the right to an interpreter and the assistance provided by the interpreter.







(ii) As regards the reasons for the appointment of a Russian interpreter – There was no indication in the file that any possibilities of securing Lithuanian interpretation had been entertained by the author-ities during the trial or the investigation. It was only after the second-instance court’s judgment that the domestic court had made some enquiries about the availability of interpreters in Lithuanian, without any further steps being taken. While that court established that no such interpreters had been registered in Slovenia at the material time and that translation to and from that language would have required the assistance of the nearest Lithuanian Embassy, a translation from Lithuanian to Slovenian and vice versa had in fact been obtained later in the proceedings. In any event, the Government had not put forward any compelling reasons preventing the authorities from appointing a Lithuanian inter-preter to assist the applicant. The domestic courts’ decisions had been based on the assumption that the applicant understood Russian and was able to follow the proceedings in that language.

(iii) As regards the assessment of the applicant’s interpretation needs – The authorities had not explicitly verified the applicant’s linguistic com-petency in Russian. He had never been consulted as to whether he understood the interpretation and written translation in Russian well enough to conduct his defence effectively in that language. In that connection, the Court rejected Government’s argument about the use of Russian in Lithuania.

(iv) As regards other indications of the applicant’s knowledge of Russian – There had been no audio recordings of the questioning by the investigat-ing judge or the hearing and no other evidence to determine the applicant’s actual level of spoken Russian. In the absence of any verification, his lack of cooperation during the police procedure and during the questioning by the investigating judge might be explained, at least in part, by his difficul-ties expressing himself and following the proceed-ings in Russian. The few rather basic statements the applicant had made during the hearing, presuma-bly in Russian, could not be considered as sufficient to show that he had in fact been able to conduct his defence effectively in that language. Even though the Constitutional Court had found that the appli-cant had “succeeded in communicating” with his counsel, its conclusion seemed to be based on an assumption rather than on evidence of the appli-cant’s linguistic proficiency or actual communica-

tion with his counsel. In conclusion, although the applicant appeared to have been able to speak and understand some Russian, the Court did not find it established that his competency in that language was sufficient to safeguard the fairness of the pro-ceedings.

(v) As regards the lack of complaint or request for the appointment of a different interpreter during the trial – Under domestic law the applicant was enti-tled to interpretation in his native language and the authorities were obliged to inform him of that right and to make a record of such a notification and of the applicant’s response to it. There was no indication that the authorities had complied with that requirement. The Government had given no justification for that failure. In the Court’s view the lack of the aforementioned notification of the right to interpretation, coupled with the applicant’s vulnerability as a foreigner who had arrived in Slo-venia only for a brief period before the arrest and had been detained during the proceedings, and his limited command of Russian, could well explain the lack of any request for a different interpreter or complaint in this regard until later in the pro-ceedings, at which point he had been able to use his native language. The Constitutional Court had considered the applicant’s situation to be of an exceptional nature, with the consequence that he had not been required to exhaust regular remedies. The failure by the applicant’s legal representative to raise the issue of interpretation had not relieved the domestic court of its responsibility under Article 6 of the Convention.

***

In sum, it was not established in the present case that the applicant had received language assis-tance which would have allowed him to actively participate in the trial against him. This, in the Court’s view, had been sufficient to render the trial as a whole unfair.

Conclusion: violation (five votes to two).

Article 41: EUR 6,400 in respect of non-pecuniary damage; claim in respect of pecuniary damage dis-missed.

ARTICLE 8

Respect for private and family life


Exhumation, in the context of criminal proceed-ings, of the remains of deceased persons against the wishes of their families: violation

Solska and Rybicka v. Poland, 30491/17 and 31083/17, judgment 20.9.2018 [Section I]

Facts – On 10 April 2010 an aircraft of the Polish Air Force, carrying a Polish State delegation including the President of Poland and many high-ranking officials, crashed killing all ninety-six people on board. The applicants are the widows of two of the victims of the crash.

In 2016 a prosecutor of the State Prosecutor’s Office decided to appoint a team of international and forensic experts with a view to carrying out autop-sies on the bodies of eighty-three victims of the crash (the bodies of nine victims had already been exhumed and four victims had been cremated). The prosecutor further ordered that the bodies be exhumed on dates to be determined in separate orders. The applicants objected to the exhumation of their husbands’ bodies and lodged interlocu-tory appeals against the prosecutor’s decision. The Warsaw Regional Court held that as Article 210 of the Code of Criminal Procedure (“the CCP”) did not provide for judicial review of a prosecutor’s decision to exhume a body under that Article, it was constitutionally and conventionally deficient and referred a legal question to the Constitutional Court. The proceedings before it were suspended until the Constitutional Court had issued a decision on the matter. The applicants’ attempt to obtain an injunction from the civil courts was unsuccessful.

The exhumations took place in 2018.

Law

Article 35 § 1 (exhaustion of domestic remedies): The Court rejected the Government’s preliminary objection of non-exhaustion of domestic remedies. The referral of the legal question to the Constitu-tional Court suspended only the examination of the applicants’ interlocutory appeal by the Warsaw Regional Court and the exhumations were carried out regardless of the pending proceedings.

Article 8

(a) Applicability of the right to respect for private and family life – The Court had not yet specifically addressed the issue of applicability of Article 8 to the exhumation of a deceased person against the will of the family members in the context of criminal proceedings. It was not disputed that Article 8 was

applicable; the question was whether the right to respect for the memory of a late relative, which was recognised under the Polish law, should be consid-ered part of family life. While the exercise of Article 8 rights concerning family and private life pertained, predominantly, to relationships between living human beings, the Court had previously found that certain issues related to the way in which the body of a deceased relative was treated, as well as issues regarding the ability to attend the burial and pay respects at the grave of a relative came within the scope of the right to respect for family or private life. Having regard to that case-law, the Court held that the facts in the case fell within the scope of the right to respect for private and family life.

(b) Merits – The exhumation of the applicants’ deceased husbands’ remains constituted an inter-ference with their right to respect for private and family life. The interference complained of had a legal basis in Polish law, namely Article 210 of the CCP.

With regard to the quality of the law, the State authorities were required to find a due balance between the requirements of an effective investiga-tion under Article 2 and the protection of the right to respect for private and family life of the parties to the investigation and other persons affected. There might be circumstances in which exhumation was justified, despite the opposition by the family. Even though the investigation in the present case concerned an incident of unprecedented gravity, which had affected the entire functioning of the State, the Court was mindful of the importance of the applicants’ interest in ensuring that the remains of their deceased husbands were respected.

The prosecutor had ordered the exhumation of the remains of the applicants’ husbands. When issuing his order, the prosecutor had not been required by the CCP to assess whether the aims of the inves-tigation could have been attained through less restrictive means or to evaluate the possible impli-cations of the impugned measures on the private and family life of the applicants. Furthermore, the prosecutor’s decision was not amenable to appeal before a criminal court or any other form of ade-quate scrutiny before an independent authority.

The applicants had attempted to obtain an injunc-tion from a civil court preventing the prosecutor from carrying out the exhumations. However, the civil courts had dismissed their application, having found that the prosecutor had exercised



his functions in compliance with the relevant provisions of the CCP. The civil courts had neither reviewed the necessity of the impugned measure nor weighed the interference resulting from the prosecutor’s decision against the applicants’ inter-ests safeguarded by Article 8 of the Convention.

The Court, therefore, concluded that Polish law did not provide sufficient safeguards against arbitrari-ness with regard to a prosecutorial decision order-ing exhumation. The domestic law did not provide a mechanism to review the proportionality of the restrictions on the relevant Article 8 rights of the persons concerned resulting from the prosecutor’s decision. The applicants had thus been deprived of the minimum degree of protection to which they were entitled.


Article 41: EUR 16,000 to each applicant in respect of non-pecuniary damage.


Dismissal of judge from the position of President of appeal court for failure to properly perform administrative duties: Article 8 not applicable; inadmissible

Denisov v. Ukraine, 76639/11, judgment 25.9.2018 [GC]

Facts – The applicant had been dismissed from the position of President of the Kyiv Administrative Court of Appeal on the basis of a failure to perform his administrative duties properly. He remained a judge of that same court. He complained, inter alia, that his dismissal had constituted an unlawful and disproportionate interference with his private life, contrary to Article 8 of the Convention.

Law – Article 8 (applicability): As the question of applicability was an issue of the Court’s jurisdiction ratione materiae, the general rule of dealing with applications had to be respected and the relevant analysis had to be carried out at the admissibility stage unless there was a particular reason to join that question to the merits. No such particular reason existed in the applicant’s case.

(a) General Principles – Article 8 could not be relied on in order to complain of a loss of reputation or other repercussions that were the foreseeable consequences of one’s own actions (see Gillberg v. Sweden [GC]).

Employment-related disputes were not per se excluded from the scope of “private life” within the meaning of Article 8. There were some typical aspects of private life which might be affected in such disputes. Those aspects included the appli-cant’s “inner circle”, the applicant’s opportunity to establish and develop relationships with others, and the applicant’s social and professional repu-tation. There were two ways in which a private-life issue could arise in such a dispute: either because of the underlying reasons for the impugned measure (in that event the Court employed the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employed the consequence-based approach).

If the consequence-based approach was at stake, the threshold of severity with respect to those typical aspects of private life assumed crucial importance. It was for the applicant to show con-vincingly that the threshold had been attained. The applicant had to present evidence substantiating consequences of the impugned measure. The Court would only accept that Article 8 was applicable where those consequences were very serious and had affected his or her private life to a very signifi-cant degree.

An applicant’s suffering was to be assessed by com-paring his or her life before and after the measure in question. In determining the seriousness of the consequences in employment-related cases it was appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particu-lar case. That analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remained for the applicant to define and substantiate the nature and extent of his or her suffering, which had to have had a causal connection with the impugned measure.

(b) Application – The explicit reasons for the appli-cant’s dismissal had been strictly limited to his per-formance in the public arena, namely his alleged managerial failings, which were said to have under-mined the proper functioning of the court. Those reasons related only to the applicant’s administra-tive tasks in the workplace and had had no connec-tion to his private life. In the absence of any such issues in the reasons given for his dismissal, it had to be determined whether, according to the evidence and the substantiated allegations put forward by



the applicant, the measure had had serious nega-tive consequences for the aspects constituting his “private life”.

The applicant contested the very existence of any misconduct, thus implying that the measure involv-ing his legal liability – his dismissal – could not have been a foreseeable consequence of his conduct in the position of president of a court of appeal and therefore his case could be distinguished from the applicant’s case in Gillberg.

The applicant had not provided any evidence to suggest that the reduction in his monthly remuner-ation had seriously affected the “inner circle” of his private life. As to establishing and maintaining rela-tionships with others, his dismissal from the posi-tion of president had not resulted in his removal from his profession. He had continued to work as an ordinary judge and he had remained at the same court alongside his colleagues. Even if the appli-cant’s opportunities to establish and maintain rela-tionships, including those of a professional nature, might have been affected, there were no factual grounds for concluding that such effects were sub-stantial.

The applicant’s principal professional function was that of a judge. The profession of judge required him to possess specific knowledge, educational qualifications, skills and experience. In recompense for his service in that capacity, the applicant had been paid the predominant part of his salary. The successful performance of a presidential or adminis-trative function in a court was not, strictly speaking, a characteristic of the judicial profession. Therefore, in objective terms, the judicial function constituted the applicant’s fundamental professional role. His position as president of a court, however important and prestigious it might have been in the judicial sphere and however it might have been subjec-tively perceived and valued by the applicant, did not relate to the principal sphere of his professional activity. At no point had the domestic authorities examined the applicant’s performance as a judge or expressed any opinion as to his judicial com-petence and professionalism. Unlike in Oleksandr Volkov v. Ukraine, the decisions concerned only his managerial skills. That limited area of scrutiny and criticism could not be regarded as having related to the core of the applicant’s professional reputation. While his position as president might have been the apex of his legal career, he had not specified how the alleged loss of esteem among his peers had

caused him serious prejudice in his professional environment or how his dismissal had affected his future career as a judge.

As regards social reputation in general, the criticism by the authorities had not affected a wider ethical aspect of the applicant’s personality and character. Even though his dismissal had been based on the findings of breaches of official duties in the admin-istration of justice, there had been no accusation of intentional misconduct or criminal behaviour. The applicant’s moral values had not been called into question and no reproaches of that nature could be identified in the impugned decisions.

Accordingly, measuring the applicant’s subjective perceptions against the objective background and assessing the material and non-material impact of his dismissal on the basis of the evidence presented before the Court, it had to be concluded that the dismissal had had limited negative effects on the applicant’s private life and did not cross the thresh-old of seriousness for an issue to be raised under Article 8 of the Convention.

Conclusion: inadmissible (incompatible ratione ma teriae).

Applying the criteria set out in Oleksandr Volkov v. Ukraine, the Court found, unanimously, that the High Council of Justice had failed to ensure an independent and impartial examination of the applicant’s case and that the subsequent review by the Higher Administrative Court had not remedies those defects, in breach of Article 6 § 1 of the Con-vention.


(See Gillberg v. Sweden [GC], 41723/06, 3 April 2012, Information Note 151; and Oleksandr Volkov v. Ukraine, 21722/11, 9 January 2013, Information Note 159; see also Erményi v. Hungary, 22254/14, 22 November 2016)


Military service performed by a conscript who had not informed the authorities about his scoli-osis: no violation

Kasat v. Turkey, 61541/09, judgment 11.9.2018 [Section II]

Facts – The applicant was declared fit for military service in the unit of mountain commandos. While







he was serving in the army, doctors diagnosed scoliosis and low back pain. After hospital treat-ment and an operation he was put on sick leave, exempted from military service and registered as 55% unfit for work.

The applicant considered the military authorities to be responsible for the consequences of his condi-tion, alleging that he was unfit to serve in the army as a commando and that his military duties had left him disabled. His compensation claim against the State was unsuccessful.

Law – Article 8: The military authorities had a duty to ensure that conscripts were medically fit to face the conditions inherent in serving with the com-mandos and in the place to which they were posted.

In this connection, the applicant had undergone the usual process of a medical examination to verify fitness for military service in terms of health before beginning his training, and he had been declared fit. In addition, at the time of his mobilisation, he had not informed the authorities of any health problems.

According to the reports available in the file, the initial medical examination carried out at the time of recruitment might not have been sufficient to reach a diagnosis of scoliosis, particularly as the applicant had not drawn attention to any obvious symptoms or to the affected area of the spine.

After being posted to the commandos, the appli-cant had undergone a medical examination which had in particular included a chest X-ray but no back X-ray. Following that examination he had been declared fit and had begun the commando training.

Under the rules, however, scoliosis rendered a conscript unfit for military service. That being said, as there were no obvious signs of a handicap, it would have been excessive to expect the State to proceed with a more in-depth examination than that provided for by the rules of the armed forces concerning physical fitness for military service. It would also be disproportionate to ask the military authorities to carry out any specific medical tests, such as back X-rays, for each commando candidate, on the grounds of a possibility of such an underly-ing condition.

Moreover, the military authorities could not be reproached for a lack of good will. They had reacted properly and quickly enough once the appli-cant’s back problems had been identified. He had

been admitted to hospital and operated on at the State’s expense. In addition, since the doctors had taken the view that the applicant could no longer continue to do his military service, he was then exempted from it. Lastly, no causal link between the military service and the existence, together with the progression, of the condition suffered by the applicant had been established by the medical assessments subsequently carried out.


The Court also found, unanimously, that there had been a violation of Article 6 § 1, on the ground that the career officers in the Military Administrative High Court did not present sufficient guarantees of independence.

Article 41: EUR 1,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dis-missed.

(See also Álvarez Ramón v. Spain (dec.), 51192/99, 3 July 2001; Lütfi Demirci and Others v. Turkey, 28809/05, 2 March 2010, Information Note 128; and the Factsheet on Health)


Convention compliance of secret surveillance regime including the bulk interception of exter-nal communications: violations; no violation

Big Brother Watch and Others v. the United Kingdom, 58170/13 et al., judgment 13.9.2018 [Section I]

Facts – The applicants, a number of companies, charities, organisations and individuals made up of three applications to the Court, complained about the scope and magnitude of the electronic surveil-lance programmes operated by the Government of the United Kingdom. The applicants all believed that due to the nature of their activities, their elec-tronic communications were likely to have either been intercepted by the United Kingdom intelli-gence services; obtained by the United Kingdom intelligence services after being intercepted by foreign governments; and/or obtained by the United Kingdom authorities from Communications Service Providers (CSPs).

The applicants complained about the Article 8 compatibility of three discrete regimes: the regime for the bulk interception of communications under section 8(4) of the Regulation of Investigatory



https://www.echr.coe.int/Documents/FS_Health_ENG.pdf




Powers Act (RIPA); the intelligence sharing regime; and the regime for the acquisition of communica-tions data under Chapter II of RIPA.

The applicants in the third of the joined cases each lodged a complaint before the Investigatory Powers Tribunal (IPT) alleging violations of Articles 8, 10 and 14 of the Convention. As regards interceptions of external communications pursuant to a warrant issued under section 8(4) of RIPA, the IPT found that the regime and safeguards were sufficiently com-pliant with the requirements the European Court had laid down in Weber and Saravia v. Germany (dec.) for the interference to be “in accordance with the law” for the purposes of Article 8 of the Conven-tion. It did, however, find two “technical” breaches of Article 8 concerning in one instance the reten-tion for longer than permitted of lawfully inter-cepted material and in the other a failure to follow the proper selection-for-examination procedure. The applicants in the first and second of the joined cases did not bring complaints before the IPT.

Law

Article 35 (exhaustion of domestic remedies): The IPT was a specialist tribunal with sole jurisdiction to hear allegations of wrongful interference with communications as a result of conduct covered by RIPA. It considered both the generic compliance of the relevant interception regime as well as the specific question whether the individual applicant’s rights had, in fact, been breached. Those involved in the authorisation and execution of an intercept warrant were required to disclose to the IPT all the documents it might require, including documents relating to internal arrangements for processing data which could not be made public for reasons of national security, irrespective of whether those doc-uments supported or undermined their defence. The IPT had discretion to hold oral hearings, in public, where possible, and, in closed proceedings, it could appoint Counsel to the Tribunal to make submissions on behalf of claimants who could not be represented. When it determined a complaint, the IPT had the power to award compensation and make any other order it saw fit, including quash-ing or cancelling any warrant and requiring the destruction of any records. In considering the com-plaint brought by the applicants in the third of the joined cases, the IPT used all of those powers for the benefit of the applicants.

In view both of the manner in which the IPT had exercised its powers in the past fifteen years and the

very real impact its judgments had had on domes-tic law and practice, the concerns expressed by the Court in Kennedy v. the United Kingdom about its effectiveness as a remedy for complaints about the general compliance of a secret surveillance regime were no longer valid.

It appeared to the Court that where the IPT had found a surveillance regime to be incompatible with the Convention, the Government had ensured that any defects were rectified and dealt with. Therefore, while the evidence submitted by the Government might not yet have demonstrated the existence of a “binding obligation” requiring it to remedy any incompatibility identified by the IPT, the Court nev-ertheless accepted that the practice of giving effect to its findings on the incompatibility of domestic law with the Convention was sufficiently certain for it to be satisfied as to the effectiveness of the remedy.

However, the Court accepted that, at the time the applicants in the first and second of the joined cases introduced their applications, they could not be faulted for having relied on Kennedy as authority for the proposition that the IPT was not an effective remedy for a complaint about the general Conven-tion compliance of a surveillance regime. It there-fore found that there existed special circumstances absolving those applicants from the requirement that they first bring their complaints to the IPT.

Article 8

(a) The section 8(4) regime

(i) General principles relating to secret measures of surveillance, including the interception of communications – In its case-law on the interception of communications in criminal investigations, the Court had developed the following six minimum requirements that had to be set out in law in order to avoid abuses of power: the nature of offences which might give rise to an interception order; a definition of the categories of people liable to have their communications intercepted; a limit on the duration of interception; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which intercepted data may or must be erased or destroyed. In Roman Zakharov v. Russia [GC], the Court confirmed that the same six minimum requirements also applied in cases where the interception was for reasons of national


security; however, in determining whether the impugned legislation was in breach of Article 8, it also had to have regard to the arrangements for supervising the implementation of secret surveil-lance measures, any notification mechanisms and the remedies provided for by national law.

Review and supervision of secret surveillance measures might come into play at three stages: when the surveillance was first ordered, while it was being carried out, or after it had been termi-nated. As regards the first two stages, the very nature and logic of secret surveillance dictated that not only the surveillance itself but the accompany-ing review should be effected without the individ-ual’s knowledge. Consequently, since the individual would necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it was essential that the procedures established should themselves provide adequate and equiv-alent guarantees safeguarding his or her rights. In a field where abuse was potentially so easy in individual cases and could have such harmful con-sequences for democratic society as a whole, it was in principle desirable to entrust supervisory control to a judge, judicial control offering the best guar-antees of independence, impartiality and a proper procedure.

As regards the third stage, after the surveillance had been terminated, the question of subsequent noti-fication of surveillance measures was inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safe-guards against the abuse of monitoring powers. There was in principle little scope for recourse to the courts by the individual concerned unless the latter was advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively or, in the alternative, unless any person who suspected that he or she had been subject to surveillance could apply to courts, whose jurisdiction did not depend on notification to the surveillance subject of the measures taken.

(ii) The test to be applied – The Court rejected the applicants’ argument that the six minimum requirements should be “updated” by including requirements for objective evidence of reasona-ble suspicion in relation to the persons for whom data was being sought, prior independent judicial authorisation of interception warrants, and the sub-sequent notifications of the surveillance subject.

It was clear that bulk interception was a valuable means to achieve the legitimate aims pursued, par-ticularly given the current threat level from both global terrorism and serious crime. Bulk intercep-tion was by definition untargeted, and to require “reasonable suspicion” would render the operation of such a scheme impossible. Similarly, the require-ment of “subsequent notification” assumed the existence of clearly defined surveillance targets, which was simply not the case in a bulk interception regime. While the Court considered judicial author-isation to be an important safeguard, and perhaps even “best practice”, by itself it could neither be necessary nor sufficient to ensure compliance with Article 8 of the Convention. Rather, regard had to be had to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse.

Accordingly, the Court would examine the justifi-cation for any interference by reference to the six minimum requirements, adapting them where necessary to reflect the operation of a bulk inter-ception regime. It would also have regard to the additional relevant factors which it had identified in Roman Zakharov.

(iii) The scope of application of secret surveillance measures – In addressing the first two minimum requirements, the Court considered that the rele-vant legal provision was sufficiently clear, giving cit-izens an adequate indication of the circumstances in which and the conditions on which a section 8(4) warrant might be issued. There was no evidence to suggest that the Secretary of State was authorising warrants without due and proper consideration. The authorisation procedure was subject to independ-ent oversight and the IPT had extensive jurisdiction to examine any complaint of unlawful interception. The Court accepted that the provisions on the dura-tion and renewal of interception warrants, the pro-visions relating to the storing, accessing, examining and using intercepted data, the provisions on the procedure to be followed for communicating the intercepted data to other parties and the provisions on the erasure and destruction of intercept material were sufficiently clear as to provide adequate safe-guards against abuse.

With regard to the selection of communications for examination, once communications had been intercepted and filtered, those not discarded in near real-time were further searched; in the first


instance by the automatic application, by com-puter, of simple selectors (such as email addresses or telephone numbers) and initial search criteria, and subsequently by the use of complex searches. Selectors and search criteria did not need to be made public; nor did they necessarily need to be listed in the warrant ordering interception. Nev-ertheless, the search criteria and selectors used to filter intercepted communications should be subject to independent oversight; a safeguard which appeared to be absent in the section 8(4) regime. In practice the only independent oversight of the process of filtering and selecting intercept data for examination was the post factum audit by the Interception of Communications Commissioner and, should an application be made to it, the IPT. In a bulk interception regime, where the discretion to intercept was not significantly curtailed by the terms of the warrant, the safeguards applicable at the filtering and selecting for examination stage had to necessarily be more robust.

The Court was satisfied that the intelligence ser-vices of the United Kingdom took their Convention obligations seriously and were not abusing their powers under section 8(4) of RIPA. Nevertheless, an examination of those powers had identified two principal areas of concern: first, the lack of over-sight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted commu-nications, and the selection of material for exami-nation by an analyst; and secondly, the absence of any real safeguards applicable to the selection of related communications data for examination. In view of those shortcomings, the Court found that the section 8(4) regime did not meet the “quality of law” requirement and was incapable of keeping the “interference” to what was “necessary in a dem-ocratic society”.

Conclusion: violation (five votes to two).

(b) The intelligence sharing regime – This was the first time that the Court had been asked to con-sider the Convention compliance of an intelligence sharing regime. The interference in the case had not been occasioned by the interception of communi-cations itself but lay in the receipt of the intercepted material and subsequent storage, examination and use by the intelligence services of the respondent State. The circumstances in which intercept mate-rial could be requested from foreign intelligence services had to be set out in domestic law in order

to avoid abuses of power. While the circumstances in which such a request could be made might not be identical to the circumstances in which the State might carry out interception itself, they must nev-ertheless be circumscribed sufficiently to prevent – insofar as possible – States from using that power to circumvent either domestic law or their Conven-tion obligations.

The Court was satisfied that there was a basis in law for the requesting of intelligence from foreign intelligence agencies, that that law was sufficiently accessible and pursued several legitimate aims. Furthermore, the Court considered the relevant domestic law and code indicated with sufficient clarity the procedure for requesting either inter-ception or the conveyance of intercept material from foreign intelligence agencies. There was no evidence of any significant shortcomings in the application and operation of the regime.

Conclusion: no violation (five votes to two).

(c) The Chapter II Regime – The Chapter II regime permitted certain public authorities to acquire communications data from Communication Service Providers (CSPs). Domestic law, as interpreted by the domestic authorities in light of judgments of the Court of Justice of the European Union (CJEU), required that any regime permitting the authori-ties to access data retained by CSPs limited access to the purpose of combating “serious crime”, and that access be subject to prior review by a court or independent administrative body. As the Chapter II regime permitted access to retained data for the purpose of combating crime (rather than “serious crime”) and, save for where access was sought for the purpose of determining a journalist’s source, it was not subject to prior review by a court or independent administrative body, it could not be in accordance with the law within the meaning of Article 8 of the Convention.

Conclusion: violation (six votes to one).

Article 10: The applicants in the second of the joined cases, a journalist and a newsgathering organi-sation, complained about the interference with confidential journalistic material occasioned by the operation of both the section 8(4) and the Chapter II regimes.

(a) The section 8(4) regime – The surveillance meas-ures under the section 8(4) regime were not aimed at monitoring journalists or uncovering journalistic sources. Generally the authorities would only know


when examining the intercepted communications if a journalist’s communications had been inter-cepted. The interception of such communications could not, by itself, be characterised as a particularly serious interference with freedom of expression. However, the interference would be greater should those communications be selected for examina-tion and would only be “justified by an overriding requirement in the public interest” if accompa-nied by sufficient safeguards relating both to the circumstances in which they might be selected intentionally for examination, and to the protection of confidentiality where they had been selected, either intentionally or otherwise, for examination.

It was of particular concern that there were no requirements either circumscribing the intelligence services’ power to search for confidential journalis-tic or other material (for example, by using a jour-nalist’s email address as a selector), or requiring analysts, in selecting material for examination, to give any particular consideration to whether such material was or might be involved. Consequently, it would appear that analysts could search and examine without restriction both the content and the related communications data of those inter-cepted communications.

In view of the potential chilling effect that any per-ceived interference with the confidentiality of their communications and, in particular, their sources might have on the freedom of the press and, in the absence of any published arrangements limit-ing the intelligence services’ ability to search and examine such material other than where “it was justified by an overriding requirement in the public interest”, the Court found that there had been a vio-lation of Article 10 of the Convention.

(b) The Chapter II Regime – In considering the appli-cants’ Article 8 complaint, the Court had concluded that the Chapter II regime was not in accordance with the law as it permitted access to retained data for the purpose of combating crime (rather than “serious crime”) and, save for where access was sought for the purpose of determining a journalist’s source, it was not subject to prior review by a court or independent administrative body.

The Court acknowledged that the Chapter II regime afforded enhanced protection where data was sought for the purpose of identifying a journalist’s source. Nevertheless, those provisions only applied where the purpose of the application was to deter-mine a source; they did not, therefore, apply in

every case where there was a request for the com-munications data of a journalist, or where such collateral intrusion was likely. Furthermore, in cases concerning access to a journalist’s communications data there were no special provisions restrict-ing access to the purpose of combating “serious crime”. Consequently, the Court considered that the regime could not be “in accordance with the law” for the purpose of the Article 10 complaint.

Conclusion: violations (six votes to one).

The Court also rejected the complaints under Article 6 and Article 14 combined with Articles 8 and 10 of the Convention as manifestly ill-founded.

Article 41: no claim made in respect of damage.

(See Weber and Saravia v. Germany (dec.), 54934/00, 29 June 2006, Information Note 88; Kennedy v. the United Kingdom, 26839/05, 18 May 2010, Infor-mation Note 130; Roman Zakharov v. Russia [GC], 47143/06, 4 December 2015, Information Note 191; see also Liberty and Others v. the United Kingdom, 58243/00, 1 July 2008, Information Note 110; Malone v. the United Kingdom, 8691/79, 2 August 1984; Ben Faiza v. France (dec.), 31446/12, 8 Febru-ary 2018)


Authorities’ refusal to change applicant’s ethnic-ity records: communicated

Gabel v. Azerbaijan, 62437/10 [Section IV]

The application concerns the domestic authorities’ refusal to grant the applicant’s request to change her ethnicity records from Russian to German.

Communicated under Articles 6, 8 and 13, and under Article 14 in conjunction with Article 8 of the Convention.

Respect for family life, positive obligations

Lengthy separation of father and child due to lack of statutory possibility to have visiting rights established during divorce proceedings: violation

Cristian Cătălin Ungureanu v. Romania, 6221/14, judgment 4.9.2018 [Section IV]

Facts – In autumn 2012 the applicant’s wife moved out of the family home and filed for divorce and custody of their six-year-old son. The applicant











lodged an application for an interim injunction, seeking to be granted sole or shared custody of the child or, alternatively, the right to visit the child pending the conclusion of the divorce proceedings. In January 2013 a district court, noting that the applicant had not been prevented from visiting his son in the mother’s new home, found that changing the child’s residence temporarily would not serve his interests, and that, in any case, the domestic law did not provide for the possibility to have visit-ing rights established during divorce proceedings. This decision was upheld. The applicant had been unable to see his son from June 2013 till November 2016, when the final decision in the divorce pro-ceedings was issued, granting sole custody to the mother and visiting rights to the applicant.

Law – Article 8: While the domestic courts had not always rejected as inadmissible requests for visiting rights made during divorce proceedings, nothing in the law itself allowed the applicant to expect a different outcome. In fact, the provision of the law in question, by its very nature, removed the factual circumstances of the case from the scope of the domestic courts’ examination. It had been a prev-alent factor in the domestic courts’ decisions. The remaining argument, namely that the applicant had not been prevented from seeing his child, could not be construed as constituting an effective examina-tion of the child’s best interests but had rather been a mere observation of the situation at that particu-lar moment. Moreover, the domestic courts had not examined the precariousness of the situation, nor had they responded to the applicant’s request for a more structured visiting plan. They had, as such, left the exercise of a right which was fundamental to both the applicant and his child to the discretion of the applicant’s spouse with whom he had had (at the time) a conflict of interest.

In addition, the divorce proceedings had lasted for more than four years, affecting the applicant and his child for about three years and five months. While the underlying problem lay with an insuffi-cient quality of the domestic law, the lengthiness of that period of time led the Court to conclude that the respondent State had failed to discharge its positive obligations under article 8 of the Conven-tion (see M. and M. v. Croatia, 10161/13, 3 Septem-ber 2015, Information Note 188).



(See also Cengiz Kılıç v. Turkey, 16192/06, 6 Decem-ber 2011, Information Note 147)

Respect for family life

Mother denied contact rights in respect of her child in foster care because of abduction risk: violation

Jansen v. Norway, 2822/16, judgment 6.9.2018 [Section V]

Facts – In 2011, when her daughter was born, the applicant was 19 years old and was living at home with her parents, Norwegian Roma. Shortly after-wards, she and her daughter were thrown out by the applicant’s father and they moved into a family centre – a parent-child institution. They moved between the applicant’s home and the family centre several times. During one stay at the family centre, the grandfather stabbed a neighbouring couple who, he believed, had helped the applicant to move to the family centre. After this incident the applicant again returned home. Shortly thereafter, the Child Welfare Service applied for a care order pursuant to domestic law.

In June 2012 the applicant’s daughter was moved to an emergency foster home at a secret address, and it was decided that the applicant would have one hour of supervised contact per week because of the risk that the child might be abducted. Several months later, the child was moved from the emer-gency foster home to her current foster home.

In December 2012 a new care order was issued giving both parents supervised contact of one hour, four times a year with neither of them being entitled to know the child’s whereabouts. Subse-quently, in June 2013, the City Court passed judg-ment and ordered that the applicant and the child’s father were not entitled to have any contact with her pertaining to the child’s best interests on the basis there was a present and obvious risk of kid-napping. The applicant’s subsequent legal appeals proved unsuccessful.

Law – Article 8: Based on the assessments of evi-dence made by the domestic courts, there were indications that there had been a real risk of abduction which emanated predominantly from the applicant’s father, but was not limited to him. The applicant’s father had stabbed a neighbouring couple in the belief that they had helped the applicant to take the child out of their home; the





applicant had been told that her father planned to take her to another country, kill her and take her child; the child’s father had received death threats when he had sought to establish his paternity; and a family member had followed one of the foster parents, possibly as part of discovering the child’s whereabouts. The Court had no basis for finding that the domestic courts had erred in assessing the abduction risk and qualifying it as “a real risk” in accordance with domestic case-law. The Court also accepted the national authorities’ assessment that the consequences of an abduction would have been detrimental for the child’s development as she would again have been likely to suffer neglect.

Regarding the procedure, after the care order of December 2012 had been issued, the case had been examined once by the City Court, twice by the High Court, and once in full by the Supreme Court. In addition, a review had been carried out by the Supreme Court’s Appeals Leave Committee. The High Court’s bench had been composed of three professional judges, a lay judge and a psychologist. Thus, it could not be said that there had been a lack of expert advice. The applicant, with legal aid counsel, had been allowed to present evidence and give testimony in the City Court and on both occa-sions in the High Court. Taking all this into account, the domestic decision-making process had been comprehensive and the applicant had been suffi-ciently involved in it as she had been provided with the requisite protection of her interests and fully able to present her case.

The national courts had not only assessed the sit-uation of the applicant and her daughter at the moment when she had been taken into care, but had followed up on later developments. Thus, the High Court had carried out an extensive assessment of the applicant’s recent development and situation at that time. Many different aspects had thus been taken into account in the decision-making process, not only the degree of the risk of abduction, but also the consequences if an abduction were to happen, the child’s signs of having suffered neglect, her vul-nerability and needs, her interests in knowing her Roma background and culture, and the effects that contact would have had on the foster parents and the conditions in the foster home. Therefore, there were no grounds for contesting that the domestic authorities had carried out a sufficiently in-depth examination of the case or that the decision had

been taken based on what had been considered to be in the child’s best interests.

The High Court had considered that the risk of abduction had not only related to the moment when contact sessions would take place, but also to the danger of the foster family’s home and iden-tity becoming known to the applicant’s family. The organisation of such sessions might therefore have been difficult, and any number of sessions could have potentially entailed that information about where the child lived was revealed. However, it had never been foreseen that there would be more than four contact sessions a year, a factor that reduced the risk of the child’s whereabouts being revealed. Furthermore, the decision complained of had entailed the danger that family relations between the applicant and her daughter were effectively curtailed. In its decision the High Court had not explicitly mentioned that the applicant and her daughter had not seen each other for three years. Moreover, the High Court’s decision had not focused on reuniting the daughter and her mother or on preparing for reunification in the near future, but rather on protecting the child from a potential abduction and its consequences. There was a risk that the child could completely lose contact with her mother. According to the Court’s case-law it was imperative to consider the long-term effects which a permanent separation of a child from her natural mother might have (see, mutatis mutandis, Görgülü v. Germany, 74969/01, 26 February 2004). This was all the more so as the separation of the child from her mother could also have led to her alienation from her Roma identity.

In sum, the potential negative long-term conse-quences for the daughter of losing contact with her mother and the positive duty to take measures to facilitate family reunification as soon as reasonably feasible had not been sufficiently weighed in the balancing exercise.



Positive obligations

Authorities’ failure to prosecute perpetrator of in decent sexual acts against minor: communi-cated



K.M. v. the former Yugoslav Republic of Macedonia, 59144/16 [Section I]

The applicant, who was 14 years old at the time, reported to the police an alleged incident of inde-cent behaviour and use of inappropriate language by Gj.K. who had visited her home as a handyman. The prosecutor established that Gj.K. had touched the applicant’s breast and caressed her leg. However, he concluded that, in the absence of an actual use of force or threat, those acts could not be qualified as rape or any other offence which was subject to ex officio prosecution, but rather as an act of insult, which was subject to private prosecution.

The applicant’s subsequent civil action against Gj.K. for insult, which at that point could no longer have been subject to criminal prosecution on account of legislative amendments, was dismissed by two levels of civil courts on the ground that the impugned actions had not amounted to an insult.

Communicated under article 8 of the Convention.

(See also Söderman v. Sweden [GC], 5786/08, 12 November 2013, Information Note 168; and A, B and C v. Latvia, 30808/11, 31 March 2016)

ARTICLE 10


Ban on books by well-known classic Muslim the-ologian, declared extremist literature: violation

Ibragim Ibragimov and Others v. Russia, 1413/08 and 28621/11, judgment 28.8.2018 [Section III]

Facts – The applicants published or commissioned the publication of the books from the RisaleI Nur Collection, an exegesis on the Qur’an written by well-known Turkish Muslim scholar Said Nursi in the first half of the 20th century. Muslim authori-ties in Russia and abroad, as well as Islamic studies scholars, all affirm that his texts belong to mod-erate mainstream Islam, advocate tolerant rela-tionships and cooperation between religions, and oppose any use of violence. The books have been translated into 50 languages and are available in many countries, both in paper and on the Internet. They were used for religious and educational pur-poses in Russian mosques and medreses. The books were declared to be extremist literature, resulting in a ban on their publication and distribution, and

seizure of undistributed copies, in accordance with the Suppression of Extremism Act. The applicants unsuccessfully challenged this decision.

Law – Article 10 interpreted in the light of Article 9: The interference with the applicants’ right to freedom of expression, interpreted in the light of their right to freedom of religion, had a legal basis in the Suppression of Extremism Act. Noting the opinion of the European Commission for Democ-racy through Law (the Venice Commission), which had found the definition of “extremist activity” to be too broad, imprecise and open to different interpretations, the Court left open the question whether the interference with the applicants’ right to freedom of expression could be regarded as “pre-scribed by law”. The contested measures sought to pursue the legitimate aims of preventing disorder and protecting territorial integrity, public safety, and the rights of others.

While the domestic law did not require any element of violence for an activity to be qualified as extrem-ist, the domestic courts had declared Said Nursi’s books “extremist” on the grounds of their alleged incitement to “religious discord” and propaganda about people’s superiority or deficiency in their attitude toward religion. In making its determi-nation, the domestic courts had not made an independent assessment of the texts, but merely relied on disputed expert opinion, which went far beyond resolving merely linguistic and psycholog-ical issues and provided the crucial legal findings as to the extremist nature of the books. The courts had not discussed the necessity of banning the books, having regard to the context in which they were published, their nature and wording, and their potential to lead to harmful consequences. The domestic courts had not even mentioned the effect of the ban on the applicants’ rights under Articles 9 and 10 of the Convention. Moreover, they had summarily rejected all evidence submitted by the applicants, which was plainly relevant for the assessment of whether banning the books had been justified: the opinions of Muslim authorities and Islamic studies scholars who had explained the historical context in which the books had been written, their place in the body of Islamic religious literature, in particular the fact that they belonged to moderate rather than radical Islam, their impor-tance for the Russian Muslim community and their general message of tolerance, interreligious coop-eration and opposition to violence.







http://www.venice.coe.int/


Regarding the first application (no. 1413/08), since the domestic courts had not even indicated what passages they considered “extremist”, it was impos-sible for the applicants to re-publish the books in question after editing out the troublesome pas-sages. The domestic courts’ decisions therefore amounted to an absolute ban on publishing and distributing the books.

In the second application (no. 28621/11), the domestic court had concluded that the book at issue in this case treated non-Muslims as inferior to Muslims in so far as it described Muslims as “the faithful” and “the just”, and everyone else as “the dissolute”, “the philosophers”, “the idle talkers” and “little men”. The book also proclaimed that not to be a Muslim was an “infinitely big crime”. However, although, according to the experts, such state-ments were common in monotheistic religious texts, the court had taken them out of context and failed to assess them in the light of the book as a whole. Although the impugned statements clearly promoted the idea that it was better to be a Muslim than a non-Muslim, it was significant that they did not insult, hold up to ridicule or slander non-Mus-lims; nor did they use abusive terms in respect of them or of matters regarded as sacred by them.

Furthermore, neither the domestic court nor the Government had referred to any circumstances indicative of a sensitive background at the material time – such as the existence of interreligious tensions or an atmosphere of hostility or hatred between religious communities in Russia – against which the impugned statements could risk unleashing vio-lence, giving rise to serious interreligious frictions or leading to similar harmful consequences. The state-ments had not been shown to be capable of inciting violence, hatred or intolerance. While the author’s intention was to convince the readers to adopt his religious beliefs, that was insufficient, in the Court’s view, to justify banning the book. It had never been argued that the content of the book amounted to, or encouraged, improper proselytism, that is attempting to convert people through the use of violence, brainwashing or taking advantage of those in distress or in need. Nor had it been claimed that the book advocated any activities going beyond promoting religious worship and observance in private life of the requirements of Islam, or sought to reorganise the functioning of society as a whole by imposing on everyone its religious symbols or con-ception of a society founded on religious precepts.

In conclusion, the Court found that the domestic courts in both applications had not applied stand-ards which were in conformity with the principles embodied in Article 10, and had not provided “rel-evant and sufficient” reasons for the interference. It rejected the Government’s preliminary objection under Article 17.


Article 41: EUR 7,500 to Mr Ibragimov in respect of non-pecuniary damage; no claim submitted by other applicants.


Conviction and suspended prison sentence for offensive Internet comment against police officers: violation

Savva Terentyev v. Russia, 10692/09, judgment 28.8.2018 [Section III]

Facts – The applicant, a young blogger, posted an online comment labeling all police officers as “low-brows” as well as “the dumbest and least educated representatives of the animal world” and calling for the “burning of infidel cops in Auschwitz-like ovens” with the aim of “cleansing society of this cop-hood-lum filth”. He was convicted of incitement of hatred against police officers as a social group and sen-tenced to a one-year suspended prison term.

Law – Article 10: The Court proceeded on the assumption that the interference with the appli-cant’s freedom of expression was prescribed by law and pursued a legitimate aim, namely to protect the reputation and rights of the Russian police officers.

The text in question had been framed in very strong words and used vulgar, derogatory and vituperative terms. The key issue was, however, whether the applicant’s statements read as a whole and in their context could be seen as promoting violence, hatred or intolerance. In this regard, the applicant’s comment had been made in the context of a discussion concerning a matter of general and public concern, namely the alleged involvement of the police in silencing and oppressing the political opposition during the period of an electoral cam-paign. The comment had showed the applicant’s emotional disapproval and rejection of what he had seen as abuse of authority by the police, con-veying his sceptical and sarcastic point of view on the moral and ethical standards of the personnel of the Russian police and could therefore be under-



stood as a scathing criticism of the current state of affairs in the Russian police.

Although the passage about “[ceremonial] burning of infidel cops in Auschwitz-like ovens” was par-ticularly aggressive and hostile in tone, it was not, as considered by the domestic courts, a call for the police officers’ “physical extermination by ordinary people” but rather a provocative metaphor and an emotional appeal to see the police “cleansed” of corrupt and abusive officers (“infidel cops”). As for the reference to Auschwitz, while Holocaust survivors and especially those who had escaped Auschwitz might be offended by such a statement, the protection of their rights had never been cited by the domestic courts among the reasons for the applicant’s conviction. Moreover, the text in ques-tion did not reveal any intention to praise or justify the Nazis’ practices used at Auschwitz. No sup-porting arguments had been advanced as to why the Russian police officers could have considered themselves affected by such a reference and, more generally, recourse to the notion of annihilation by fire could not in itself be regarded as incitement to any unlawful action, including violence.

It was also of relevance that the applicant’s remarks had not attacked personally any identifiable police officer but rather concerned the police as a public institution, which could hardly be described as a group in need of heightened protection. Being a part of the security forces of the State, the police should display a particularly high degree of toler-ance to offensive speech, unless such inflammatory speech was likely to provoke imminent unlawful actions in respect of their personnel, exposing them to a real risk of physical violence. There was no indication that the comment had been published against a sensitive social or political background or in a tense security situation involving anti-po-lice riots or other circumstances exposing police officers to a real and imminent threat of physical violence. The domestic courts had thus failed to explain why police officers as a social group needed enhanced protection.

As for the potential impact of the impugned comment, the domestic courts had not attempted to assess whether the blog where the applicant had posted his comment was generally highly visited, or to establish the actual number of users who had accessed that blog during the period of one month when the applicant’s comment had remained avail-able. In fact, it was the criminal prosecution that

had prompted the interest of the public towards the comment, which had seemingly drawn very little public attention previously. The applicant had not been a well-known blogger or a popular user of the social media, let alone a public or influential figure which could have attracted public attention and thus enhanced the potential impact of the impugned statements. The potential of the appli-cant’s comment to reach the public and thus to influ-ence its opinion had therefore been very limited.

With respect to the reasoning of the domestic courts, they had focused on the form and tenor of the impugned statements, without analysing them in the context of the relevant discussion. Furthermore, no attempt had been made to assess the potential of the statements at hand to provoke any harmful consequences, with due regard to the political and social background, against which they had been made, and to the scope of their reach. The domestic courts had therefore failed to take account of all the facts and relevant factors, hence the reasons given could not be regarded as “rele-vant and sufficient” to justify the interference with the applicant’s freedom of expression.

While offensive, insulting and virulent, the appli-cant’s statements could not be seen as an attempt to incite hatred against the Russian police officers. Nor did they have any potential to provoke vio-lence, thus posing a clear and imminent danger which would have required the applicant’s criminal conviction and a suspended prison sentence. The interference had therefore been disproportionate to the legitimate aim invoked.


Article 41: finding of a violation constituted suffi-cient just satisfaction in respect of any non-pecuni-ary damage.

(See also Dmitriyevskiy v. Russia, 42168/06, 3 Octo-ber 2017, Information Note 211)


Insufficient protection of confidential journalist material under electronic surveillance schemes: violations


(See Article 8 above, page 16)






Lawyers temporarily barred from representing their terrorist client to avoid transmission of his statements: inadmissible

Tuğluk and Others v. Turkey, 30687/05 and 45630/05, decision 27.9.2018 [Section II]

Facts – The applicants, who are lawyers, were tem-porarily barred by the judicial authorities from rep-resenting their client Abdullah Öcalan to ensure that they would not transmit their client’s state-ments to the press. Accounts of their visits were published in the following days in certain newspa-pers, where they were seen as conveying their cli-ent’s opinions on the current situation or as giving instructions to the PKK (Kurdistan Workers’ Party).

Law – Article 10: Assuming that the impugned measure constituted an interference with the applicants’ freedom of expression, it was clearly prescribed by law and pursued the aim of the pre-vention of disorder or crime.

The Court had previously found in the cases of Öcalan v. Turkey [GC] (46221/99, 12 May 2005, Information Note 75) and Öcalan v. Turkey (no. 2) (24069/03 et al., 18 March 2014) that the rules on contacts with the outside world for lifers held in a high-security prison sought to restrict any links between the persons concerned and their criminal background, to minimise the risk of their maintaining personal contact with the structures of criminal organisations. The Court also regarded as well-founded the Government’s concerns that Abdullah Öcalan might make use of communica-tions with the outside world to make contact with the members of the armed separatist movement of which he was the leader.

The role played by the applicants as lawyers and intermediaries between their client and the crimi-nal courts imposed a certain number of obligations on their conduct. The press conferences held by the applicants after their visits to their client had not concerned his defence nor did they fall within the exercise of the right to inform the public about the functioning of the justice system, but rather could be seen as a means of conveying their client’s views on, among other things, the strategy to be adopted by his former armed organisation, the PKK. The measures taken by the national authorities had sought to prevent the applicants from exploiting their visits to their client in order to establish com-

munication between him and his former armed organisation, and they had met a pressing social need, namely to prevent any violent or terrorist acts.

The imposition on the applicants of a temporary procedural measure had been proportionate to the aim pursued, especially as, while the length of the suspension of their client’s representation for a year and a half could not be seen as insignificant, it was nevertheless not excessive. This moderate sanction, which in fact had had no repercussion for the applicants’ professional activities visàvis their clients other than Abdullah Öcalan, had constituted a non-disproportionate response to their actions, since their conduct had contravened the rules gov-erning their office.


(See also Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184; and the Factsheet on Life imprisonment)

ARTICLE 11

Freedom of peaceful assembly

Prosecution and conviction of activist following dispersal of peaceful assembly: violation

Mushegh Saghatelyan v. Armenia, 23086/08, judgment 20.9.2018 [Section I]

Facts – Following the announcement of the prelim-inary results of the 2008 presidential election, the main opposition candidate called on his supporters to gather at Freedom Square in central Yerevan in order to protest over alleged irregularities in the election process. From 20 February 2008 onwards, daily rallies were held and at times attracted tens of thousands of people. Several hundred demonstra-tors stayed around the clock, having set up camp in the square. The applicant was an active participant in the rallies. In the early morning of 1 March 2008, about 800 heavily armed police officers moved in and dispersed the demonstration. The appli-cant fled Freedom Square and was arrested soon thereafter. He was later convicted of two counts of “assault on a police officer” and for illegally carrying a bladed weapon.

Law – Article 5 § 1: Unacknowledged detention of an individual was a complete negation of the





https://www.echr.coe.int/Documents/FS_Life_sentences_ENG.pdf



fundamentally important guarantees contained in Article 5 of the Convention and disclosed a most grave violation of that provision.

The applicant had been taken to the police station at around 6.30 a.m. on 1 March 2008. However, according to the record of his arrest, he had only been arrested at 10.30 p.m. on that day. He had been taken to the police station by force and nothing suggested that he had been free to leave. He had been locked up in a cell during all or part of that period. There was no reason to doubt, therefore, that between 6.30 a.m. and 10.30 p.m. on 1 March 2008 the applicant had been deprived of his liberty within the meaning of Article 5 § 1. The question was whether that deprivation of liberty had com-plied with the requirement of “lawfulness” within the meaning of Article 5 § 1 of the Convention.

According to the Government, up until 10.30 p.m. the applicant had been formally neither “arrested” nor a “suspect” within the meaning of domestic law but had had the status of a “brought-in person”, having been apparently put through a pre-arrest procedure called “bringing-in”. None of the Articles of the Criminal Code of Procedure (“the CCP”) con-tained any rules concerning the alleged status of a “brought-in person”. The concept of a “brought-in person” appeared to have been developed for the first time by the Court of Cassation in a decision in 2009. Prior to that, nothing suggested that the rele-vant provisions of the CCP had been interpreted by the domestic courts in such a manner as to provide for a pre-arrest procedure called “bringing-in”. Nor did the particular circumstances of the applicant’s case suggest that his deprivation of liberty before 10.30 p.m. had been pursuant to such a procedure. In particular, the only document which mentioned that the applicant had been “brought in” was a handwritten record entitled “record of bringing-in” which lacked any basis in domestic law.

The applicant’s status had only been formalised 16 hours after his forced appearance at the police station. During that period the applicant had been left without any sense of certainty as to his personal liberty and security and had been deprived of all the rights enjoyed by an arrested suspect under the CCP, including the right to have a lawyer and to inform his family immediately. The initial sixteen hours of the applicant’s deprivation of liberty had been left formally unacknowledged.

Further, the applicant had remained in police custody for at least 84 hours prior to being brought

before a judge. That had been in excess of the maximum period of 72 hours permitted by domes-tic law. Such a continued arrest without a judicial order for the time exceeding the 72-hour period was incompatible with the domestic law.


Article 11

(a) Whether there had been an interference with the exercise of the right to freedom of peaceful assembly – Article 11 only protected the right to “peaceful assembly”, a notion which did not cover a demon-stration where the organisers and participants had violent intentions. There was no evidence to suggest that the demonstrations held at Freedom Square from 20 February 2008 had involved incite-ment to violence or that there had been any acts of violence prior to the police operation conducted in the early morning of 1 March 2008. The Govern-ment’s allegation that the demonstrators had been planning to arm themselves to instigate mass dis-order was unsubstantiated. There was no evidence to suggest that any firearms, explosives or bladed weapons had been used by the demonstrators during the police operation.

There had therefore been an interference with the applicant’s right to freedom of peaceful assembly on account of both the dispersal of the demonstra-tion and his subsequent prosecution, detention and conviction.

(b) Whether the interference was justified – The authorities had allowed the assembly, and had not made any attempts to break it up for nine days. The official explanation of the purpose of the police operation of 1 March 2008, to verify information obtained that weapons were to be distributed to the protestors, was not sufficiently credible and the Court had no reason to doubt that the objective of the police intervention had been to disperse the camp and those present at Freedom Square and to prevent the further conduct of the assembly.

The purpose of the demonstration had not been to obstruct the lawful exercise of an activity by others but to have a debate and to create a platform for expression on a public matter of major political importance which was directly related to the func-tioning of a democracy and was of serious concern to large segments of the Armenian society. There-fore, a greater degree of tolerance should have been demonstrated in the present case than that shown by the authorities.


The actions of the police did not appear to have ever been the subject of an independent and impartial investigation. The dispersal of the assem-bly at Freedom Square without sufficient justifica-tion and apparently without warnings to disperse and with unjustified and excessive use of force was a disproportionate measure which went beyond what it was reasonable to expect from the authori-ties when curtailing freedom of assembly.

The facts on which the charges against the appli-cant had been based were not backed by any evi-dence, were drafted in very general and abstract terms, without any specific details of the acts alleg-edly committed. It appeared that the applicant had been prosecuted and detained for simply having actively participated in, and possibly organised, the assembly at Freedom Square.

The applicant had been prosecuted and detained on such grounds for at least five months until most of the charges against him had been dropped, mostly for lack of evidence. Practically at the same time, new evidence and charges emerged and the applicant was accused of assaults on police officers and illegally carrying a knife. The appli-cant alleged that those charges had been artificial and fabricated in order to convict him at all cost for being an opposition activist. Those allegations did not appear to be without merit. The manner in which the criminal case against the applicant had initially been conducted and the fact that, as already indicated above, he had been prosecuted and detained for almost five months for basically taking an active part in the demonstrations in itself raised questions regarding the motives of the applicant’s prosecution. It was unclear why no charges had been brought against the applicant for such a long period of time if a knife had indeed been found in his possession on the very first day of his arrest.

The judgments in the applicant’s criminal case were a mere recapitulation of the indictment against him, which in its turn was based entirely on the testimony of the police officers concerned. The domestic courts had failed to carry out a thorough and objective establishment of the facts underlying the charges against the applicant and to demon-strate the rigour and scrutiny which, in the particu-lar circumstances of the case and given the overall context, were required of them in order to ensure an effective implementation of the right to freedom of peaceful assembly guaranteed by Article 11. In

such circumstances, it could not be said that the reasons adduced by the domestic courts to justify the interference were genuinely “relevant and suf-ficient”, which stripped the applicant of the proce-dural protection that he enjoyed by virtue of his rights under Article 11.

Even assuming that the dispersal of the assembly and the applicant’s prosecution, detention and conviction had complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention – presumably, prevention of disorder and crime –, the measures in question were not necessary in a democratic society. Furthermore, the dispersal of the assembly and the punitive measures taken against the appli-cant could not but have the effect of discouraging him from participating in political rallies. Undoubt-edly, those measures had also had a serious poten-tial to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate.


The Court also found, unanimously, a violation of both the substantive and procedural limbs of Article 3, having found that the Government had failed to discharge their burden of proof and to provide a satisfactory and convincing application for the applicant’s injuries and that no official inves-tigation had been carried out specifically into his allegations of ill-treatment. The Court also held that the domestic courts had failed to provide relevant and sufficient reasons for the applicant’s detention in breach of Article 5 § 3. Finally, the Court found a violation of Article 6 § 1 finding that the domes-tic courts had unreservedly endorsed the police version of events, failed to properly address any of the applicant’s submissions and had refused to examine the defence witnesses.


(See also Hakobyan and Others v. Armenia, 34320/04, 10 April 2012; and Kasparov and Others v. Russia, 21613/07, 3 October 2013, Information Note 167)

ARTICLE 14

Discrimination (Article 1 of Protocol No. 1)




National legislation providing, in certain situ-ations, for higher taxation of pension income than earned income: communicated

Taipale v. Finland, 5855/18 [Section I], Tulokas v. Finland, 5854/18 [Section I]

(See Article 1 of Protocol No. 12 below, page 32)

ARTICLE 18

Restriction for unauthorised purposes

Detention of human rights defender and search of his home and office for the purpose of silenc-ing and punishing him and impeding his work: violation

Aliyev v. Azerbaijan, 68762/14 and 71200/14, judgment 20.9.2018 [Section V]

Facts – In 2014 the applicant, a prominent human rights lawyer and civil-society activist in Azerbai-jan, was arrested and remanded in custody on charges of illegal entrepreneurship, large-scale tax evasion and aggravated abuse of power. His home and the office of the non-governmental organi-sation he chaired – the Legal Education Society (hereafter “the Association”) – were searched in relation to the charges, his and the Association’s bank accounts were frozen and a large number of documents, computers and electronic data storage devices were seized. In 2015 he was convicted as charged. In 2016 he was released as his sentence was reduced to five years imprisonment suspended on probation.

The applicant’s criminal trial is the subject of a sepa-rate application which is pending before the Court.

Law

Article 5 § 1 (c): The applicant had been arrested and detained in the absence of a “reasonable suspi-cion” of having committed a criminal offence.


Article 8: The domestic court had authorised the search the day before the applicant had been for-mally charged, justifying it merely by referring in vague terms to the criminal investigation into “breaches of legislation discovered in the activities of a number of non-governmental organisations” without asserting any specific facts related to the suspected crimes. It therefore appeared that the

court had not satisfied itself that there had been a reasonable suspicion of the applicant’s having committed a criminal offence or that the relevant evidence might be found at the premises to be searched. Furthermore, the administrative irregu-larities that had allegedly been committed by the applicant with respect to receipt and use of the grants by the Association could not have given rise to liability under criminal law. The search and seizure at the applicant’s home and office had therefore not pursued the aim of prevention of a crime or any of the other legitimate aims enumer-ated in paragraph 2 of Article 8 of the Convention.


Article 18 in conjunction with Articles 5 and 8: The authorities’ actions had been driven by improper reasons. The actual purpose of the impugned meas-ures had been to silence and to punish the appli-cant for his activities in the area of human rights as well as to prevent him from continuing those activ-ities. Proof of an ulterior purpose derived from the following case-specific facts:

(i) The applicant, a human rights defender and more specifically a human rights lawyer, was the legal representative before the Court in a large number of cases and had submitted, on behalf of the Association, communications to the Committee of Ministers of the Council of Europe concerning execution of the Court’s judgments.

(ii) The applicant had been charged with serious criminal offences whose core constituent elements could not reasonably be found in the existing facts.

(iii) The applicant’s arrest had been accompanied by stigmatising statements made by public officials against local NGOs and their leaders, including the applicant, who had been labelled as “traitors” and a “fifth column” with the purpose of delegitimising their work.

(iv) The search of the applicant’s home and office had not pursued any of the legitimate aims and had been conducted in an arbitrary manner. Fur-thermore, the authorities had not only seized documents related to the Association’s activities, but also taken case files covered by lawyer-client confidentiality, including those related to the appli-cations pending before the Court, in disregard of legal professional privilege.

(v) The Court took into account the general context of increasingly harsh and restrictive legislative





regulation of NGO activity and funding in the respondent State which in this instance had led to the prosecution of a NGO activist for an alleged failure to comply with legal formalities of an administrative nature while carrying out his work. Although States could have legitimate reasons to monitor financial operations in accordance with international law with a view to preventing money laundering and terrorism financing, the ability of an association to receive and use funding in order to be able to promote and defend its case consti-tuted an integral part of the right to freedom of association.

(vi) The Court also noted the repercussions of the impugned measures on the applicant’s right to freedom of association. As a result of de facto crim-inalisation of his activities and the measures taken against him in this context, he had been prevented from conducting his NGO activity in any meaningful way. Moreover, those measures had had the chilling effect on the civil society at large, whose members often acted collectively within NGOs and who, for fear of prosecution, might as a result have been dis-couraged from continuing their work of promoting and defending human rights.

(vii) Several notable human rights activists who had cooperated with international organisations for the protection of human rights, including the Council of Europe, had been similarly arrested and charged with serious criminal offences entailing heavy prison sentences. These facts supported that the measures taken against the applicant had been part of a larger campaign to “crack down on human rights defenders in Azerbaijan, which had intensi-fied over the summer of 2014”.


Article 46: Similar violations had been found in four other cases against Azerbaijan. The events exam-ined in all five cases, including the present one, could not be considered as isolated incidents but revealed a troubling pattern of arbitrary arrest and detention of government critics, civil society activ-ists and human rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law. The actions of the State stemming from this pattern might give rise to further repet-itive applications as reflected by the number of applications raising similar issues which had been either communicated to the Azerbaijani Govern-ment or were currently pending before the Court.

Having regard to the specific group of individuals affected by the above-mentioned pattern in breach of Article 18, the necessary general measures to be taken by the respondent State had to focus, as a matter of priority, on the protection of critics of the government, civil society activists and human rights defenders against arbitrary arrest and deten-tion and to ensure the eradication of retaliatory prosecutions and misuse of criminal law against this group of individuals and the non-repetition of similar practices in the future.

As regards the individual measures to be taken in order to achieve restitutio in integrum, the Com-mittee of Ministers, which was better placed than the Court to assess the specific measures, should supervise, on the basis of the information provided by the respondent State, and with due regard to the applicant’s evolving situation, the adoption of such measures that were feasible, timely, adequate and sufficient to ensure the maximum possible rep-aration for the violations found by the Court.

The Court also found, unanimously, a breach and no breach of Article 3 on the account of the appli-cant’s conditions of detention during two respec-tive periods; no breach of Article 3 on account of his medical treatment in detention; and a violation of Article 5 § 4 due to lack of effective judicial review of the lawfulness of the detention orders.


(See Rasul Jafarov v. Azerbaijan, 69981/14, 17 March 2016, Information Note 194; Ilgar Mammadov v. Azerbaijan, 15172/13, 22 May 2014, Informa-tion Note 174; Mammadli v. Azerbaijan, 47145/14, 19 April 2018; Rashad Hasanov and Others v. Azerbaijan, 48653/13 et al., 7 June 2018; Lutsenko v. Ukraine, 6492/11, 3 July 2012, Information Note 154; and Tymoshenko v. Ukraine, 49872/11, 30 April 2013, Information Note 162)

ARTICLE 35

ARTICLE 35 § 1

Exhaustion of domestic remedies, effective domestic remedy – United Kingdom

Effectiveness of complaint about the general Convention compliance of a surveillance regime to the Investigatory Powers Tribunal: admissible













ARTICLE 35 § 3 (b)

No significant disadvantage

Lack of effective judicial supervision of a house search devoid of any financial implications: pre-liminary objection dismissed

Brazzi v. Italy, 57278/11, judgment 27.9.2018 [Section I]

Facts – A search of the applicant’s second home was ordered by the public prosecutor in the context of a tax audit. No evidence was seized and the proceed-ings were discontinued by the preliminary investi-gations judge.

The applicant continued to complain to the author-ities, on a number of occasions, about the unlaw-fulness of the search measure, that he considered unjustified, and alleged before the European Court that no effective judicial supervision had been available to him under Italian law.

Law – Article 35 § 3 (b): The case had not had any financial implications in itself, because it concerned a house search not resulting in any seizure of prop-erty or other interference with assets. However, the seriousness of a violation had to be assessed taking into account both the applicant’s subjective perception and what was objectively at stake in a particular case. In other words, a lack of significant disadvantage could be assessed on the basis of aspects such as the pecuniary consequences of the dispute in question or the importance of the matter for the applicant.

The dispute concerned a question of principle in the applicant’s view, namely his right to the peace-ful enjoyment of his possessions and his home. The subjective importance of the question appeared evident to the applicant, who had continued to appeal to the authorities to forcefully dispute the lawfulness of the search. As to what was objectively at stake in the case, it concerned the existence under Italian law of effective judicial supervision in respect of a search, therefore an important ques-tion of principle both in domestic law and in Con-vention law.

Thus the first condition of inadmissibility in Article 35 § 3 (b) of the Convention, namely that the applicant had not suffered a significant disadvan-tage, was not met.

Conclusion: preliminary objection dismissed (unan-imously).

On the merits, the Court found unanimously that the interference with the applicant’s right to respect for his home, namely the search, was not “in accordance with the law” and entailed a violation of Article 8 of the Convention, given that the national legislation, which did not provide for prior judi-cial scrutiny or subsequent judicial review of the measure, had not afforded the applicant sufficient guarantees against abuse or arbitrariness.

(See also Ionescu v. Romania (dec.), 36659/04, 1 June 2010, Information Note 131; Giuran v. Romania, 24360/04, 21 June 2011, Information Note 142; Shefer v. Russia (dec.), 45175/04, 13 March 2012, Information Note 150; and Eon v. France, 26118/10, 14 March 2013, Information Note 161)

ARTICLE 46

Execution of judgment – General measures

Respondent State required to eradicate arbi-trary arrests, detention and retaliatory prosecu-tion of government critics, civil society activists and human rights defenders

Aliyev v. Azerbaijan, 68762/14 and 71200/14, judgment 20.9.2018 [Section V]



Peaceful enjoyment of possessions

Unlawful exposure of property to daily mine detonations in close proximity: violation

Dimitar Yordanov v. Bulgaria, 3401/09, judgment 6.9.2018 [Section V]

Facts – The applicant owned parts of a plot of land and the buildings standing on it, including his home, in an area where the government decided to create an opencast coalmine close to appli-cant’s village. An expropriation procedure was










Information Note 221 August | September 2018 Article 1 of Protocol No. 12

commenced in 1990 involving numerous proper-ties, including the applicant’s, to remove owners from the area to facilitate operation of the mine. After waiting for more than two years to receive his replacement property, the applicant requested that the appropriation be quashed, as he was entitled to do, and continued living in the home. Over the years, the mining operation expanded and at some point detonations were occurring within 160-180 meters of the applicant’s home, despite the legal requirement to maintain a 500-meter “sanitation zone” between non-industrial buildings, such as residential dwellings, and the mining operation.

The applicant abandoned his property in 1997 when his family concluded that continuing to reside there was no longer safe due to cracks in the walls, collapse of the out-buildings, and daily shaking of the home. He unsuccessfully filed several domestic actions for damages. The domestic courts found that these daily detonations in close prox-imity to the applicant’s property were in breach of domestic legislation. However, they were unable to establish a causal link between the detonations and the damage to his home since, due to the passage of time and the destruction of some documents, it had proved impossible to determine the distance between the house and the area where the deto-nations had been carried out in 1997, when he had abandoned his property.

Law – Article 1 of Protocol No. 1: The Government had not shown that the authorities had intended to honour their legal obligations under the expro-priation procedure. The applicant could therefore not be blamed for the expropriation procedure’s failure. The mine had been managed by a company that was entirely State-owned. The company had not been engaged in ordinary commercial busi-ness, but instead in a heavily regulated field subject to environmental and health-and-safety require-ments. It was significant that the decision to create the mine had been taken by the State, which had also expropriated numerous privately owned prop-erties in the area to allow for its functioning. The company was thus the means of conducting a State activity. The authorities, through the failed expro-priation of the applicant’s property and the work of the mine under what was effectively State control, had been responsible for the applicant’s property remaining in the area of environmental hazard, namely the daily detonations in close proximity to the applicant’s home. That situation, which had led

the applicant to abandon his property, amounted to State interference with the peaceful enjoyment of his “possessions”. The detonations within the sanitation zone had been in manifest breach of domestic law. The interference with the peaceful enjoyment of the applicant’s possessions had thus not been lawful for the purposes of the analysis under Article 1 of Protocol No. 1.


The Court also found unanimously no violation of Article 6 § 1, as the decisions of the national courts, in particular their conclusion contested by the applicant as to the existence of a causal link between the detonation works at the mine and the damage to his property, had not reached the threshold of arbitrariness and manifest unreasona-bleness or amounted to a “denial of justice”.

Article 41: EUR 8,000 in respect of pecuniary and non-pecuniary damage.


General prohibition of discrimination

National legislation providing, in certain situ-ations, for higher taxation of pension income than earned income: communicated

Taipale v. Finland, 5855/18 [Section I], Tulokas v. Finland, 5854/18 [Section I]

The two applicants retired and started receiving old age pension respectively in 2004 and 2012. From 1 January 2013, amendments in the Income Tax Act entered into force. An additional tax of 6% was imposed on pensioners whose annual pension exceeded EUR 45,000. The amendment was of a permanent nature. The revised Act also imposed an additional tax of 2% on employed tax-payers whose annual income exceeded EUR 100,000. However, that amendment was of temporary nature and only applied for the tax years of 2013-2015. The aims of the amendments were to collect taxes from those whose ability to pay taxes was the highest; to diminish the tax treatment gap between pensions and income received from employment; and to give an incentive for older people to stay longer in working life.

The applicants’ annual pensions exceeded the threshold of EUR 45,000. In 2013 and 2014 Mr Tai-



Information Note 221 August | September 2018 Other jurisdictions

pale was charged around EUR 2,000 in additional taxes, while Mr Tulokas – around EUR 3,000. Their complaints were dismissed.

Communicated under Articles 13 and 14 of the Con-vention and Article 1 of Protocol No. 12.

OTHER JURISDICTIONS

European Union – Court of Justice (CJEU) and General Court

No reasons provided for the dismissal by a Catholic hospital of a Catholic Chief Medical Officer for remarrying after his divorce

IR v. JQ, C-68/17, judgment 11.9.2018 (CJEU, Grand Chamber)

JQ is of the Roman Catholic faith. He was Head of the Internal Medicine Department of a hospital run by IR, a limited liability company incorporated under German law and subject to the supervision of the Archbishop of Cologne (Germany). JQ’s employment contract was agreed on the basis of the Basic Regulations on employment relationships in the service of the Church, which provided that by entering into a marriage that was invalid under canon law, an employee with managerial status would seriously infringe his duty of loyalty and his dismissal would be justified.

IR thus dismissed JQ after learning that he had entered into a civil marriage before his first religious marriage had been annulled. According to IR, JQ had, by entering into that invalid marriage, clearly failed to fulfil his duty of loyalty under his contract of employment.

JQ disputed his dismissal in the German employ-ment tribunals, claiming that his remarriage was not a valid ground of dismissal. In JQ’s view, the dis-missal was an infringement of the principle of equal treatment because, under the Basic Regulations, the remarriage of a head of department of the Protestant faith or of no faith would not have had any consequences for the employment relationship between that person and IR.

The Federal Labour Court (Bundesarbeitsgericht) asked the CJEU to interpret Article 4(2), second sub-paragraph, of Directive 2000/78/EC 1, which reads

1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

that, provided that its provisions are otherwise complied with, this directive will not prejudice the right of churches and other public or private organ-isations, the ethos of which is based on religion or belief, acting in conformity with national constitu-tions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.

The CJEU found that a church or other organisa-tion the ethos of which was based on religion or belief and which managed a hospital in the form of a private limited company could not decide to subject its employees performing managerial duties to a requirement to act in good faith and with loyalty to that ethos that differed according to the faith or lack of faith of such employees, without that decision being subject, where appropriate, to effective judicial review to ensure that it fulfilled the criteria laid down in Article 4(2) of Directive 2000/78.

A difference of treatment, as regards a require-ment to act in good faith and with loyalty to that ethos, between employees in managerial posi-tions according to the faith or lack of faith of those employees, would be consistent with that directive only if, bearing in mind the nature of the occupational activities concerned or the context in which they were carried out, the religion or belief constituted an occupational requirement that was genuine, legitimate and justified in the light of the ethos of the church or organisation concerned and was consistent with the principle of proportional-ity, which was a matter to be determined by the national courts.

In the present case, the requirement at issue in the main proceedings concerned the respect to be given to a particular aspect of the ethos of the Catholic Church, namely the sacred and indissolu-ble nature of religious marriage. Adherence to that notion of marriage did not appear to be necessary for the promotion of IR’s ethos, bearing in mind the occupational activities carried out by JQ, namely the provision of medical advice and care in a hos-pital setting and the management of the Internal Medicine Department which he headed. Therefore, it did not appear to be a genuine requirement of that occupational activity, which was, nevertheless, a matter for the referring court to verify.

https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A62017CJ0068

https://eur-lex.europa.eu/eli/dir/2000/78/oj?locale=en

Information Note 221 August | September 2018 Other jurisdictions

Lastly, a national court examining a dispute between two private parties was under an obliga-tion, where it was not possible for it to interpret the applicable national law in a manner that was consistent with Article 4(2) of Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derived from the general principles of EU law, such as the principle prohibiting discrimination on grounds of religion or belief, now enshrined in Article 21 of the EU Charter of Fundamental Rights, and to guarantee the full effectiveness of the rights that flowed from those principles, by disapplying, if need be, any contrary provision of national law.

The prohibition of all discrimination on grounds of religion or belief was therefore a mandatory general principle of EU law and was sufficient in itself to confer on individuals a right that they might actually rely on in disputes between them in a field covered by EU law.

Accordingly, in the main proceedings, if it consid-ered that it was impossible for it to interpret the national provision at issue in a manner that was consistent with EU law, the referring court had to disapply that provision.

(See also the CJEU case of Vera Egenberger – Evangelisches Werk für Diakonie und Entwicklung eV, C-414/16, 17 April 2018, summed up in Informa-tion Note 217. As regards the ECHR case-law, see Lombardi Vallauri v. Italy, 39128/05, 20 October 2009, Information Note 123; Obst v. Germany, 425/03, 23 September 2010, Information Note 133; Schüth v. Germany, 1620/03, 23 September 2010, Information Note 133; and Siebenhaar v. Germany, 18136/02, 3 February 2011)

Inter-American Court of Human Rights (IACtHR)

State Obligations with respect to the right to health and life of older persons

Poblete Vilches et. al. v. Chile, Series C No. 349, judgment 8.3.2018

[This summary was provided courtesy of the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: www.corteidh.or.cr.]

Mr Poblete Vilches, a 76-year-old man, was admitted twice to a public hospital in January and February

2001. During his first admission, he presented with severe respiratory failure. He underwent a surgical intervention when he was unconscious, without the consent of his family members. He was discharged early and his family had to hire a private ambulance for his transportation. During his second admission, Mr Poblete Vilches remained in the intermediate care unit, despite the fact that according to his medical file he had been referred to the intensive care ward. He also required a mechanical ventilator, which was not provided. As a result, Mr Poblete Vilches passed away. His family filed two criminal complaints which were dismissed. The State of Chile made a partial acknowledgement of international responsibility.

Merits

Article 26 (right to health) in conjunction with Arti-cles 1(1) (obligation to respect and guarantee rights without discrimination), 4 (right to life) and 5 (right to humane treatment) of the American Convention on Human Rights (ACHR): The Inter-American Court of Human Rights (hereafter “the Court”) reiterated its jurisprudence set out in the Lagos del Campo v. Peru case (Series C No. 340, 31 August 2017, summed up in Information Note 213), regarding the justiciability of Article 26 of the ACHR. The Court ruled for the first time on the right to health, spe-cifically of the elderly, as an autonomous right and as an integral part of economic, social, cultural and environmental rights, through the interpretation of the aforesaid provision.

The Court emphasised that the content of Article 26 gave rise to two types of obligations: the adoption of general measures in a progressive manner and the adoption of immediate measures. Regarding the former, the Court held that States had a specific and constant obligation to move as expeditiously and efficiently as possible towards the full effective-ness of economic, social, cultural and environmen-tal rights. As such, it did not entail that States might indefinitely postpone the adoption of measures to make those rights in question effective. Like-wise, the Court found that the principle of non-re-gression applied with respect to the full exercise of rights already achieved. Regarding immediate obligations, the Court established that those con-sisted in adopting adequate measures in order to guarantee non-discriminatory access to the bene-fits recognized for each right. Such measures had to be adequate, deliberate and concrete. The Court delimited its analysis to the scope of the provision of basic and immediate measures.



https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62016CJ0414

https://www.echr.coe.int/Documents/CLIN_2018_04_217_ENG.pdf






http://www.corteidh.or.cr/docs/casos/articulos/seriec_349_esp.pdf

http://www.corteidh.or.cr/docs/casos/articulos/resumen_349_esp.pdf

http://www.corteidh.or.cr

http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm

http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm


Information Note 221 August | September 2018 Court news

Regarding the right to health, the Court verified its consolidation: (i) as a justiciable right in light of the ACHR, through the treaty’s referral to Articles 34(i), 34(l) and 45(h) of the Charter of the Organization of American States and Article XI of the American Dec-laration of the Rights and Duties of Man, in accord-ance with the interpretation of Article 29(d) of the ACHR; and (ii) regarding the scope and content of that right for the purposes of the case, through Chilean legislation at the time of the facts and in accordance with the interpretation of Article 29(b) of the ACHR, as well as the regional legislative consensus on said right, and through the inter-national corpus iuris on the right to health. Taking into account the above, the Court derived various standards applicable to the instant case relating to basic and specific health benefits, particularly in relation to situations of medical emergency.

In sum, the Court determined that: (i) the right to health was an autonomous right protected by Article 26 of the ACHR; (ii) that right, in emergency situations, required that States ensured the ade-quate regulation of health services, providing the necessary services in accordance with the elements of availability, accessibility, quality and accepta-bility, under conditions of equality and without discrimination, but also providing affirmative meas-ures to vulnerable groups; (iii) the elderly enjoyed a reinforced level of protection with respect to health services of prevention and urgency; (iv) in order to establish the State´s responsibility for deaths in medical institutions, it was necessary to prove the denial of an essential service or treatment despite the predictability of the risk faced by the patient, or a serious medical malpractice, and to corroborate a causal link between the action and the damage; (v) the lack of adequate medical attention could lead to the violation of personal integrity; and (vi) informed consent was an obligation of health institutions, which had the duty to inform patients or, when necessary, their representatives, about the procedures and condition of the patient.

The Court analysed the two admissions to the public hospital and found several omissions in light of those standards described above. It concluded that in the second admission there had been an urgent need for the required health benefits, whose dispensation had been immediately vital and which had not been provided. Thus, the Court con-cluded that Chile did not guarantee that the health services provided to Mr Poblete Vilches were in

accordance with its immediate obligations related to the right to health in emergency situations. The Court also found that Mr Poblete Vilches had been discriminated against because he was an elderly person, and his age had proved to be a limitation for receiving the required medical attention. Finally, the Court concluded that the negligence shown in the second admission had considerably reduced his possibilities of recovery and survival, and that his death was imputable to the State.


Article 26 (right to health) in conjunction with Articles 13 (freedom of thought and expression), 7 (right to personal liberty) and 11 (right to privacy) of the ACHR: The Court held that, taking into account the applicable legislation, Chile had failed to comply with its duty to obtain substitute consent to medical treatment from family members for the non-emergency surgical intervention performed during the first admission, as well as its duty to provide clear and accessible information for family members regarding the treatment and procedures performed on the patient.


Reparations – The Court established that the judgment constituted per se a form of repara-tion and ordered that the State: (i) publish the judgment and its official summary; (ii) conduct a public act of acknowledgment of responsibility; (iii) provide psychological health care to the rel-atives; (iv) implement permanent human rights education programmes; (v) inform the Court about the progress that had been made at the hospital involved; (vi) strengthen the National Institute of Geriatrics and its incidence in the hospital network; (vii) design a publication or booklet that set out the rights of the elderly in health matters; (viii) adopt the measures necessary to design a general policy of comprehensive protection for the elderly; and (ix) pay pecuniary and non-pecuniary damages, as well as costs and expenses.

COURT NEWS

Elections

President Guido Raimondi was re-elected as Presi-dent of the Court. He has been a judge at the ECHR since 5 May 2010 and became its President on

http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp

http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp

http://www.oas.org/en/iachr/mandate/Basics/declaration.asp

http://www.oas.org/en/iachr/mandate/Basics/declaration.asp

Information Note 221 August | September 2018 Recent publications

RECENT PUBLICATIONS

Reports of Judgments and Decisions

Volumes I to VIII and the Index for 2015 have now been published. The print edition is available from Wolf Legal Publishers (the Netherlands) at [email protected]. All published volumes and indexes from the Reports series may also be downloaded from the Court’s Internet site (www.echr.coe.int – Case-law).

Case-Law Guides: new translations

Translations into French of the new Guide on Article 2 (right to life) and of the updated Guides

on Article 5 (right to liberty and security), Article 6 (right to a fair trial – civil limb), Article 8 (right to respect for private and family life) have just been published. The English translation of the updated Guide on Article 9 (freedom of thought, conscience and religion) has also just been published.

All Case-Law Guides can be downloaded from the Court’s Internet site (www.echr.coe.int – Case-law).

Guide sur l’article 2 de la Convention (fre)


1 November 2015. His term as President will finish on 4 May 2019, at the same time as his mandate as judge.

Entry into force of Protocol No. 16

Protocol No. 16 to the Convention came into force on 1 August 2018. It affords the highest courts and tribunals designated by the Contracting States that have ratified Protocol No. 16 the possibility of requesting the Court to give advisory opinions in the context of cases pending before them.

The Convention has been updated with the Proto-col being translated into 36 languages (www.echr.coe.int – Official texts – Convention).

New edition of the Rules of Court

A new edition of the Rules of Court which incorpo-rates amendments made by the Plenary Court on 19 September 2016 entered into force on 1 August 2018. It is available on the Court’s Internet site (www.echr.coe.int – Official texts – Rules).

Key cases

A selection of key cases in the HUDOC database can be identified using this category in the “Impor-tance” filter. It replaces the “Case Reports” category which corresponded since 1998 to the list of cases selected for publication in the Reports of Judgments and Decisions, as the Court will no longer be pub-lishing reports on paper or electronically in PDF format. The mode of citation of such cases has thus changed with effect from 2016.

http://www.wolfpublishers.nl/

mailto:[email protected]?subject=ECHR Reports of Judgments and Decisions

http://www.echr.coe.int/Pages/home.aspx?p=caselaw/reports&c=

http://www.echr.coe.int/Pages/home.aspx?p=caselaw/analysis/guides&c=

https://www.echr.coe.int/Documents/Guide_Art_2_FRA.pdf


https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/214

https://www.echr.coe.int/Documents/Convention_ENG.pdf

https://www.echr.coe.int/Pages/home.aspx?p=basictexts/convention

https://www.echr.coe.int/Pages/home.aspx?p=basictexts/convention

https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf

https://www.echr.coe.int/Pages/home.aspx?p=basictexts/rules&c=

https://www.echr.coe.int/Pages/home.aspx?p=caselaw/HUDOC&c=

Information Note 221 August | September 2018 Recent publications



Guide on Article 9 of the Convention (eng)

Translations into Ukrainian

Translations into Ukrainian of some of the Case-Law Guides have recently been published on the Court’s Internet site (www.echr.coe.int – Case-law).

Довідник із застосування статті 4 Конвенції – Заборона рабства і примусової праці

Довідник із застосування статті 9 Конвенції – Свобода думки, совісті і релігії

Довідник із застосування статті 2 Протоколу № 1 – Право на освіту

Посібник зі статті 3 Протоколу № 1 – Право на вільні вибори

New case-law research report

A new Research Report on extra-territorial jurisdic-tion entitled “Articles 1 and 5 – Extra-territorial juris-diction, jurisdiction of territorial State prevented from exercising its authority in part of its territory, and validity of detention and criminal proceedings in de facto entities” has just been published (in English only).

All Research Reports are available on the Court’s Internet site (www.echr.coe.int – Case-Law).

Human rights factsheets by country

The Country Profiles containing data and informa-tion, broken down by individual State, on signif-icant cases considered by the Court or currently pending before it, have been updated. All Country Profiles can be downloaded from the Court’s Inter-net site (www.echr.coe.int – Press).



https://www.echr.coe.int/Documents/Guide_Art_9_ENG.pdf

http://www.echr.coe.int/Pages/home.aspx?p=caselaw/analysis/guides&c=

https://www.echr.coe.int/Documents/Guide_Art_9_UKR.pdf

https://www.echr.coe.int/Documents/Guide_Art_2_Protocol_1_UKR.pdf

https://www.echr.coe.int/Documents/Guide_Art_3_Protocol_1_UKR.pdf

https://www.echr.coe.int/Documents/Research_report_articles_1_5_ENG.pdf

https://www.echr.coe.int/Pages/home.aspx?p=caselaw/analysis/researchreports&c=fre

https://www.echr.coe.int/Pages/home.aspx?p=press/factsheets&c=

T he Information Note, compiled by the Court’s Case-Law Information and Publications Division, contains summaries of cases

examined during the month in question which the Registry considers as being of particular interest. The summaries are not binding on the Court.

In the provisional version the summaries are normally drafted in the language of the case concerned, whereas the final single-language version appears in English and French respectively. The Information Note may be downloaded at www.echr.coe.int/NoteInformation/en. For publication updates please follow the Court’s Twitter account at twitter.com/echrpublication.

The HUDOC database is available free-of-charge through the Court’s Internet site (http://hudoc.echr.coe.int/sites/eng). It provides access to the case-law of the European Court of Human Rights (Grand Chamber, Chamber and Committee judgments, decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the Committee of Ministers (resolutions).

The European Court of Human Rights is an international court set up in 1959 by the member States of the Council of Europe. It rules on individual or State applications alleging violations of the rights set out in the European Convention on Human Rights of 1950.

ENG

www.echr.coe.int

www.echr.coe.int/NoteInformation/en

https://twitter.com/echrpublication

http://hudoc.echr.coe.int/sites/eng

http://hudoc.echr.coe.int/sites/eng

www.echr.coe.int

Information Note 221 (August-September 2018) · Dimitar Yordanov v. Bulgaria, 3401/09, judgment...

Documents

Transcript of Information Note 221 (August-September 2018) · Dimitar Yordanov v. Bulgaria, 3401/09, judgment...